Sheffield v. Lupton

Briscoe, J., delivered the opinion of the court. The plaintiff, John A. Lupton, brought this suit against the defendants, individually and as co-partners, trading as the Frederick Transit Company-New Pierce Arrow Bus Line, in the Circuit Court of Frederick County, to recover damages for certain injuries received by the plaintiff by reason of the alleged negligence of the defendants in the management and operation of an automobile bus, on or about June 29th, 1918, on Frederick Avenue in Baltimore City. The case was removed for trial to the Circuit Court for Howard County, and resulted in a verdict for the plaintiff ¹²⁵ against all of the defendants, for the sum of $2,500, with interest from April 12th, 1920'. From the judgment entered on this verdict, one of the defendants, Frank E. Sheffield, has taken this appeal.

The record contains but a single exception and that presents. the ruling of the court upon the prayers. The plaintiff offered two prayers,, but they were not pressed, and were after-wards withdrawn. Thei defendants presented ten prayers, and all of these were granted except their first, third and eighth prayers, which were refused. The ruling of the court, in the refusal to grant the defendants’ first, third and eighth prayers, form the basis and constitutes the only question arising upon this appeal.

The declaration is in the usual form in cases of this kind, and avers that, on or about the 29th day of June, 1918, while the plaintiff was in the act of alighting from the rear end of one of the electric railway cars owned and operated by the Enited Railways and Electric Company, on Frederick Avenue in Baltimore City, at or near its intersection with Forest Hill Avenue in said city, and on which railway car the plaintiff had been a passenger, the plaintiff was. run into' and knocked by an automobile bus owned by the defendants and driven by the defendants, their agents and servants; and thereby and as a result of said collision wasi seriously and permanently injured about the arms,, legs, head, body and otherwise damaged; that the said injuries, and damages so suffered by the plaintiff were caused directly by the careless, reckless and negligent manner in which the defendants, their agents and servants operated, managed, conducted and drove the automobile bus, without negligence or1 want of care on the part of the plaintiff thereunto directly contributing; that, in addition to' the aforegoing injuries and damages, the plaintiff was obliged to incur great cost and expense for medical treatment and attention. To the declaration, the defendants pleaded jointly and' severally, the general issue plea, that they did not commit the wrongs alleged and also a special plea to the effect, that at ¹²⁶ the time of the alleged wrongs there was no such partnership; as Nathaniel J. Bowen, Ernest M. Young and Frank E. Sheffield, trading as the Frederick Transit Company-New Pierce Arrow Bus Line; nor were they at any time partners. The correctness of the court’s ruling upon the question of partnership' vei non, as raised by the pleadings and presented by the defendants’ first, third and eighth prayers, constitute, as stated by the appellant in his brief, the sole question and the only error alleged to have been committed by the court below in the trial of the case. There was no error in refusing the defendants’ first prayer.

This prayer asked the court to rule asi a matter of law that, under the pleadings and evidence in the case, there was no evidence legally sufficient to establish a co-partnership' existing between the defendants at the time of the accident, and that the plaintiff was not therefore entitled to recover as against Frank E. Sheffield, and their verdict must be in his favor. It is apparent, from an examination of the record, that the testimony upon which the question of partnership' vel non in this case rested, was disputed and conflicting, and this being so, the question of whether a partnership' existed in th© case between the parties was one for the jury, and not for the court to determine as a matter of law. In 22 A. & E. Ency. of Law, 2nd Ed., 51, it is said: “Where thei facts are disputed, or the contract and intent of the parties is to be gathered by inference from parol evidence, the question is for the jury to be determined in accordance with instructions from