McDowell, Pyle & Co. v. Magazine Service, Inc.

Sloan, J., delivered the opinion of the Court. The Magazine Service, Inc., appellee, recovered a judgment against McDowell, Pyle & Co., Inc., appellant, for damage done to the truck of the former in a collision with a truck of the latter. The only exception is to the refusal of the two prayers of the appellant for a directed verdict, one that the uncontradicted evidence shows that the appellee’s driver was guilty of contributory negligence, and the other that the driver of the appellant’s truck was not, at the time of the collision, acting within the scope of his employment. The appellant is in the merchandise business at 221 Pratt Street in Baltimore City and has several delivery trucks, one of which is operated by Walter Wrightson, the driver in this case.

On the morning of July 31st, 1931, Wrightson left the appellant’s store with four orders for customers, the last of which was to the Rodgers Eorge Golf Club, on the York Road in Baltimore County. He made this delivery, and all he then had to do in the line of his duty was to return with his truck to his employer’s place of business and receive goods and orders for his next trip. Ho matter where he was, he procured his own lunch, wherever happened to' be convenient, and on this day, it being about his lunch time (then after 1 o’clock), he decided to go to his home on Esther Place in East Baltimore. The direct route from the golf club to appellant’s place of business is down Greenmount Avenue to Hillen Street, to Eallsway, to Pratt.

The collision happened at the intersection of Preston and Luzerne Streets, twelve blocks from Wrightson’s home. Luzerne Street is about twenty blocks east of Greenmount Avenue, so that the deviation from his natural route would be twice thirty-two blocks. Whether the deviation of route affects the question of liability depends on whose business is being pursued at the time. ¹⁷² The driver’s day’s work began at seven o’clock in the morúing, and ended when he completed his deliveries and returned his truck to. his employer’s garage. Asked what his working hours were, he said: “Well, I tell you, when we come to work in the morning we don’t have no certain hours to be there and.

I never have no certain hours when I get down. Whatever time I leave that’s when I get down. I mean, whatever time I leave there — whenever I get back then I can go home.” “Supposed to report at seven o’clock in the morning” and “to stay on the job as long as there is any merchandise to be delivered that day”; sometimes he is kept “late at night.” “Q. Do you have any regular time for taking your lunch? A. ETo, sir; I don’t have any regular time.

Wherever I get a chance to eat my lunch I stop and eat. • Q. Depending entirely upon the business you do ? You have no general instructions from your employer as to where you shall eat? That is left to your judgment. Is that right?

A. Yes, sir; well, the boss would let me take a truck if I wanted to. (The Court) : They told you to take the truck while you are out? A. Well, lots of times, like on Tuesdays or Wednesdays, the boss likes me to eat my lunch about eleven o’clock, you see, so that I can be ready to get my load ready so that I can leave for down through Annapolis and southern Maryland. (The Court) : They don’t want your lunch to interfere when you have a long haul?

A. Eo, sir; no six*. (The Court): Those days you have to take yoxxr lunch early? A. Yes, six*. (The Coux*t) : And a day like this it didn’t make mxxch difference what time you got your lunch ?

A. Do, sir.” He said his route was a country route, axxd that was the reason he had no certain hours. On this occasion he had made his last delivery, decided to go home for lunch, and on the way there had the accidexxt. He was allowed to take the truck whenever he was near enough to go home for lunch. “(The Court) : And you save money by going home fox* luxxch anyway, and when you are near home you go there for luxxch, and when you aren’t near home you go to some restaurant or somewhere else? A. Yes, sir.” Omitting ¹⁷³ repetitions, this is the nncontradicted, undisputed evidence which, the appellant argues, shows that, at the time of the collision, the driver, Wrightson, was on his and not his master’s business, and the appellee argues that this testimony in itself presents a disputed question of fact as to whether Wrightson was at the time acting within the scope of his agency.

There is no uniformity of decisions on the subject of this appeal. If an owner were responsible for whatever might happen during the hours óf his agent’s employment, the solution of such cases as this would be easy, and some of the cases go to almost this length. There is a presumption of liability from the fact of ownership of a vehicle causing an accident, operated at the time by one in the general employment of the owner, and that at the time the employee was acting within the scope of his master’s business; “but this presumption is only prima facie, and may be rebutted and overcome by evidence to the contrary adduced during the trial by any of the parties to the suit; and, where such evidence is undisputed and uncontradicted, it becomes properly a question for the court.” Wells v. Hecht Bros. & Co., 155 Md. 618, 623 , 142 A. 258, 261 ; International Co. v. Clark, 147 Md. 34 , 127 A. 647 ; Jordan Stabler Co. v. Tankersly, 146 Md. 454 , 126 A. 65 ; 22 C. J. 124, 156. The decisions are in such hopeless confusion that it is useless to attempt a review of them with any idea that they can be reconciled.

They all start out with the idea that the questions of agency and scope of • employment are ordinarily questions of fact for a. jury, and that from ownership of the vehicle liability is presumed, though rebuttable. The differences arise from the application of these general rules to the facts. It is plain,, therefore, that each case depends largely upon its own facts, and the construction to be adopted with reference to them. The question here, where the deviation is not disputed, is whether the driver of the appellant’s automobile had so far stepped aside from and abandoned his employer’s business as to make him, at the time of the accident, independent of ¹⁷⁴ his master’s business, and wholly disconnected with it.

The rule, as stated in Symington v. Sipes, 121 Md. 313, 318 , 88 A. 134, 136 , is: “In 28 Cyc. 39 the rule is stated to be that the owner is not liable ‘where the servant or chauffeur, although originally taking the vehicle out for the owner’s use, deviates from the owner’s business and goes upon some independent journey for his own or another’s pleasure or benefit.” The facts in that case differ from this, in that the accident there occurred when the chauffeur went on a drinking expedition after he had been directed to take the car to a certain public garage. It is not contended that, if the appellant’s driver was engaged on business of his own, and not on any business of his employer, the appellant would be liable. While there is no denial of the fact that the driver at the time of the accident was bent on business of his own, namely, going to his home for his lunch, he was doing one other piece of business, and that was working his way back, during business hours, to the store of his employer, at the time driving a truck containing the empty ginger ale bottles picked up at the golf club. Tuttle v. Dodge, 80 N. H. 304, 116 A. 627 .

It has been decided by this court that the mere deviation by a driver from the most direct and usual route does not remove the presumption of liability which attaches to the employer from the ownership of the vehicle involved in an accident. Jordan Stabler Co. v. Tankersly, 146 Md. 454 , 126 A. 65 . If the appellant’s driver used the truck to go from appellant’s store for his lunch, as he had frequently done, with or without express permission of the employer, there would have been no liability, as that would have been merely an accommodation, or a favor granted him (Myers v. Shipley, 140 Md. 380 , 116 A. 645 ; Fletcher v. Meredith, 148 Md. 580 , 129 A. 795 ), and would have been wholly independent of, and unmixed with, his employment. “The master is not liable if the servant has abandoned his obligations, and is doing something not in compliance with the express or implied authority given, and is not acting in pursuance of the general purpose of his occupation or in connection with the doing of the master’s ¹⁷⁵ work.” Fleischner v. Durgin, 207 Mass. 435 , 93 N. E. 801 , quoted in Symington v. Sipes, supra. The nearest approach to the instant case in the state is Jordan Stabler Co. v. Tankersly, 146 Md. 454 , 126 A. 65 .

The appellant in that case had two stores, one on Madison Avenne in Baltimore, the other at Roland Park. One afternoon the appellant’s driver took a load of goods from Madison Street to Roland Park, where he was given four orders for delivery on his return to Baltimore, and told to then take the truck to the garage. He made the four deliveries, then deviated from the usual and most direct way to the garage and made two other stops, delivering a package at one place and collecting some bottles at another, after which the collision in that case occurred. He had taken two young men with him on the trip, who were still with him when the two additional stops were made.

The driver, Chapman, was discharged after the accident and did not testify; his companions, who did testify, knowing nothing of the connection, if