Nattans v. Cotton

Urner, J., delivered the opinion of the Court. The sole question in this case is whether there is uncontradicted evidence rebutting the presumption that the de<fendant’s chauffeur, while driving her automobile at the time of its collision with the plaintiff’s car, was acting within the scope of his employment. It is conceded that negligence on the part of the defendant’s chauffeur was puoved by legally sufficient evidence to have caused the accident. Ho personal injury resulted from the collision, but the plaintiff’s car was damaged, and in this suit, for the amount of the repair bill, he recovered a judgment, from which the defendant has appealed.

The accident happened about eleven o’clock at night, as the defendant’s automobile was being1 driven northwardly on .Park Heights Avenue in the suburbs of Baltimore. The defendant’s chauffeur was the only occupant of her car. During the afternoon of the same da:y he had conveyed the defendant in the automobile to the home of her daughter, where she spent the evening. The ear was being driven ⁴⁶⁸ in the direction of her daughter’s home at the time of the-collision.

It was testified by the defendant that her chauffeur was under instructions to return for her at half-past ten o’clock. At his request she had given him oar fare to “go for his supper.” When she was notified of the accident, the defendant learned for the first time that the car had not remained on her daughter’s premises. Her impression 'was that it had been left there by the chauffeur. It had not been driven elsewhere that evening by her order.

On cross-examination she testified in part as follows: “Q. Did yorr tell your chauffeur when to call for you? A. About half-past. ten • he usually called for me. Q. He usually called for you in the machine to bring you home? A. Yes.

Q. Was he to call for you in the machine to bring you home that night about half-past ten? A. He was to call for me. Q. He was to call for you? A. Yes, he was to take me-home'from there.

Q. You visit your daughter very frequently? A. I do on and off. I have not a specified time-to visit her. Q. Of course, not a specified time, but would you say about once a week ?

A. About. Q. And your chauffeur would come from the garage out to Park Heights Avenue to your daughter’s to get you, would he not? A. That I don’t know. He is supposed to remain there and wait for me.

Q. But he did not always remain ? A. I never watched' him. He is supposed to be there.” The chauffeur did not testify. He was not in the service of the defendant when the case was tried, and apparently could not be located.

The policeman who notified the defendant of the accident and accompanied her when she went in a taxicab to the place of the collision, testified that she asked the chauffeur “what he was doing with the car,” but to this inquiry he-appears to have made no reply. There is no other testimony reflecting upon the question, raised by the single exception in the record, which complains of the refusal of the trial court to withdraw the case from the jury on the theory that, according to the uncon ⁴⁶⁹ tradicted evidence, the