Sacker v. Waddell

Boyd, J., delivered the opinion of the Court. The appellant sued the appellee for the loss of services of his son, who was about ten years of age, and for money expended by him for injuries sustained by the son by reason of the alleged negligence of the infant son of the appellee “employed and engaged in driving a wagon upon said defendant’s business.” Samuel Johnson assisted Waddell, the appellee, in threshing his wheat by furnishing him two men, a wagon and two horses, and he notified him when he would thresh" his own ⁴⁹ wheat and requested a return of help. Waddell said that, he could only send him a single team and “Fred might go, and Johnson replied that it was all right.” At the appointed time the appellee sent his son Frederick, who was about fifteen years of age, with his horse and wagon to Johnson’s. Frederick drove to the wheat field and before reaching the thresher stopped in the field and got a load of wheat, which he carried from where it was stacked to the thresher, “without any instructions from Johnson or any one else. ” The length of the thresher, attachment and engine, was about sixty feet.

A man named Gambrill was in charge of the work for Johnson, and Claude Sacker, the appellant’s son, who was visiting Joseph Johnson, a brother of Samuel, went of his own accord with Joseph and others who were to help Samuel. After Frederick had taken one or two loads to the thresher, he hauled another, which he had unloaded, and as he was about to return to the stacks Gambrill called him to come to him, and looking towards Gambrill, who was standing in the field some distance from the thresher, he drove past the thresher, attachment and engine and in doing so ran over Claude Sacker, who was standing by a pile of wood near the engine. Frederick did not see Claude until his horse was within a few feet of him, when he called to him to “look out” and tried to check the horse, but Claude in the confusion took a step backwards and the wagon ran over him. There was some conflict •between the witnesses as to the speed of the horse, but that is not very material as the case is presented to us.

At the conclusion of the testimony the Court granted a prayer that there was no legally sufficient evidence to entitle the plaintiff to recover, and instructed the jury to find for the defendant. It is said that action of the Court was based on the theory that at the time of the accident the relation of master and servant did not exist between the appellee and his son, but the latter was then the servant of Samuel Johnson and under his control and direction. It is suggested in the brief for the appellee that independent of that question the prayer was properly granted, as there was no legally sufficient evidence upon ⁵⁰ .which the jury could have found for the plaintiff, but without repeating the testimony, we are of the opinion that there was sufficient evidence of negligence to require the Court to submit it to the jury, if the appellee was responsible for the negligence of Frederick at the time of the injury, and hence we must consider that question. The precise point now presented has not heretofore been decided by this Court, although there have been many cases before üs and our predecessors involving the responsibility of masters to third persons by reason of the alleged negligence of their servants.

In Deford v. State, use of Keyser, 30 Md. 179 , the principle recognizing the distinction between cases in which the relation of master and servant existed and those in which there were independent contractors was fully adopted, .and. has since been followed. But the question here is whether ¡the facts proven so establish the relation of master and servant, between the appellee and his son in reference to the work at -which the latter was engaged, as to make the former responsible for the alleged negligence of the latter, which resulted ifi the injury of young Sacker. The case of Laugher v. Pointer, 5 B. & C. 547, left the law in doubt in England (the four judges being equally divided) as to whether the owner of a carriage drawn by horses owned by a job-man, who also supplied the coachman, was responsible for an injury sustained in a collision. The job-man did not pay the coachman for that day and .the defendant! did, but it was paid as a gratuity and mot in pursuance of any contract, the coachman having no employment -by the defendant, excepting such as might be inferred from his driving the carriage on that day.

In Quarman v. Burnett, 6 Mee. & Wels. 499, which, as was stated in Deford’s case “is regarded as a leading case and the one in which the present approved doctrine was first definitely established,” the opinions of Abbott, C. J., and Littledale, J., in Laugher v. Pointer, were approved and the defendant was held not to be liable, although there were some facts which strengthened the case against the hirer. In the exhaustive notes to the case of Hardy v. Shedden, 37 L. R. A. 1, it is said, on page 71, ⁵¹ that the theory “which is now established by an overwhelming weight of authority, is that a servant sent to take charge of a chattel owned by his master, while it is placed at the disposal of another party for the performance of a given piece of work, is presumed to remain the servant of his general employer, and that some special circumstances apart from the