O'Dell v. Barrett

Urner, J., delivered the opinion of the Court. A motor truck, owned by the appellant, collided with a parked automobile in which the1 appellee was seated, and for her resulting personal injuries she obtained the judgment from which this appeal was entered. There was no question at the trial as to the legal sufficiency of the evidence to prove negligence in the operation of the truck at the time of the collision. The issue in the case was whether the driver of the truck was at that time using it with the permission and for the benefit of the appellant owner, or merely for his own individual purposes and without the owner’s consent.

One of the exceptions in the record relates to the refusal of the trial court to withdraw that issue from the jury, and to the rejection of one of the defendant’s prayers by - which the issue was proposed to be defined. The other exceptions refer to rulings as to the admissibility of testimony. It is conceded that Worthen, the driver of the truck, had been employed in that capacity by the appellant, but the defense relied upon evidence that the employment terminated about two months prior to the accident, which occurred in January, 1931. The truck had been used for hauling cement.

There was no occasion to use it for that purpose after the weáther became too cold for cement paving work. According to the appellant’s testimony, the truck was placed in the garage for the winter some time in Rovember, 1930, and thereafter he had no further iieed of Wort-hen’s services and gave him no authority to remove the truck from the garage. It was testified by-Worthen that, after the season for the ³⁴⁵ cement hauling ended, he continued to visit the appellant’s place of business and occasionally performed small duties there for which he was compensated, and was allowed to retain a key to the garage where the truck was kept. But the most important feature of his testimony was the statement that he was using the truck on the day of the accident in pursuance of an agreement with the appellant, at the end of the cement hauling season, that the witness should use the truck during the winter for any other hauling work he could find, and they would divide the proceeds equally.

It does not appear that he had previously taken out the truck for any such purpose after the close of the cement hauling season, but, when the accident happened, he was returning with the truck, as he testified, after using it to earn a dollar in work which he described and to which his agreement with the appellant, if made, would be applicable. It was denied by the appellant that there was any such agreement. In view of the conflict in the evidence upon that question of fact, a verdict for the defendant could not properly have been directed upon the theory of the defendant’s requested instruction that, according to the uneontradicted evidence, the driver was using the truck, at the time of the accident, “solely for his own business or pleasure.” It is not argued in the appellant’s brief that the refusal to withdraw the ease from the jury was erroneous, but there is said to have been error in the rejection of a prayer of the defendant by which the jury would have been instructed that, if the truck was being operated, at the time of the accident, “without the knowledge, consent or permission of the defendant,” the verdict should be in his favor. By a granted prayer of the defendant, the jury were instructed to render a verdict for him if they found from the evidence that, when the accident happened, the truck was being operated by the driver “solely for his own uses and purposes.” But, by the rejected prayer last referred to, a verdict for the defendant would have been required simply upon a finding that on the occasion mentioned the defendant had no knowledge that the truck was being used, even though the1 jury might believe ³⁴⁶ that such use had been previously authorized; the terms “knowledge, consent or permission” being employed in the prayer disjunctively.

The rulings on the prayers were correct. There were eight exceptions to rulings on the admissibility of evidence, but the first, third, fifth, and seventh of those exceptions are not discussed or noticed in the appellant’s brief, and will therefore, under a rule of this court, be regarded as having been abandoned. The second exception was reserved because a chiropractor, who had treated the appellee for an injury to her pelvis and spine caused by the accident, was permitted to testify, in ■effect, that the injury would result in curvature of the spine. The contention is that a chiropractor is not qualified to express an opinion as an expert witness on that subject.

It had been testified by the witness that he examined the appellee two days before the accident and found a slight tilt of the pelvis, which caused some lameness, but that his examination after the accident revealed “an exaggerated tilt, and also a rotation of the lower part of the spine, as if some concussional force had twisted her spine out of place.” In regard to his qualifications, the witness stated that he was graduated from the Eastern Oollege of Chiropractic, in isTew York City, in 1922, and was the same year licensed to practice chiropractic in Maryland; that his examination for a license covered every ■subject on which a physician is examined except matetia medica; that he had studied anatomy, physiology, pathology, symptomatology, hygiene, obstetrics, chiropractic, orthopedics, nerve tension and adjustment, chemistry, and bacteriology; and that in his ten years’ experience he had examined and treated about ten thousand spines and administered chiropractic treatment when necessary. If patients needed medicine, he would refer them to a physician, he said, but he did not find medicine needed in this case. The treatment which he administered to the appellee consisted of ■chiropractic adjustments three times a week for a period which the record does not definitely indicate. ³⁴⁷ In order to obtain the license under which he is practicing in Maryland, the chiropractor witness, in this case was, required to, pass an examination before a state board upon the following subjects: “Anatomy, physiology, symptomatology, chiropractic orthopedy, principles of chiropractic and adjusting, nerve tracing, chemistry, hygiene, bacteriology, and chiropractic analysis as taught by chiropractic schools and colleges.” Code, art. 43, sec. 384. A duly licensed chiropractor “may adjust by hand any