Snowhite v. State, Use of Tennant

Barnes, J., delivered the opinion of the Court. In this case the jury in the Superior Court of Baltimore City answered certain special issues on which a judgment for $90,000 was entered in favor of the plaintiffs below, Julia A. Tennant, surviving widow and Michelle Tennant, surviving child of Walter W. Tennant, deceased, and for $4,000 in favor of Mrs. Tennant as administratrix of the estate of her deceased husband, against Harold Snowhite, individually and trading as Service Oil Company (Snowhite), one of the defendants below and the appellant in this Court. The decedent was killed while driving south on the Ritchie Highway at a point something over 200 feet north of the intersection of Shelly Road with that highway. The accident and his death resulted from the negligent operation of a gasoline tank truck owned by Snowhite and operated by Clarence Henderson (Henderson) while intoxicated.

Henderson, who was driving north on the highway, had entered the southbound lane, instead of continuing in the northbound lane, and struck the automobile properly operated by the decedent (but owned by his employer, The Goodyear Tire and Rubber Company) substantially head-on at approximately 5:15 p.m. on November 29, 1961. The trial court (Grady, J.) directed a verdict in favor of the plaintiffs below against Henderson and the trial court’s action in this regard is not challenged in this Court. The appellants, however, contend that the trial court erred in (1) permitting prejudicial references to insurance, (2) permitting the witness Mitchell Claude to testify in that his testimony was not in rebuttal and he was not listed as a witness in ²⁹⁶ the answers of the appellees to interrogatories, (3) in permitting the reading of portions of Henderson’s deposition as substantive evidence against Snowhite on the issue of negligent entrustment, and (4) in failing to direct a verdict in favor of Snowhite because there was no legally sufficient evidence to support a finding by the jury that Snowhite had negligently entrusted the gasoline tank truck to Henderson. In view of the action of the trial court in refusing Snowhite’s motion for judgment notwithstanding the verdict and the contention of Snowhite that there was no legally sufficient evidence to support the finding of negligent entrustment, we must “resolve all conflicts in the evidence in favor of the” appellees, as plaintiffs below, “and assume the truth of all evidence and such inferences as may reasonably be deduced therefrom which tend to support the right of the * * * (plaintiffs) to recover.” Hogan v. Q. T. Corporation, 230 Md. 69, 74 , 185 A. 2d 491, 494 (1962) and prior Maryland cases cited in the opinion in that case.

In addition to the facts already stated, the record indicates the following: For a number of years prior to the accident, Snowhite and Alexius Dyer (Dyer) were suppliers of gasoline, diesel, oil and kerosene in the Baltimore area. Dyer had a contract to haul gasoline for the American Oil Company. When his trucks were occupied, he would arrange to have Snowhite’s trucks handle the supplies. Dyer virtually retired in 1960.

Before this, he had employed Henderson whom he had known for a number of years. After February 1960, Henderson began to work for Snowhite. Henderson’s duties consisted primarily of driving either gasoline or kerosene trucks owned by Snowhite. Henderson had known both Dyer and Snowhite for between 23 and 25 years and had worked off and on for them as a driver.

Since 1952 he worked regularly, first for Dyer and later for Snowhite. His job for Snowhite was to drive Snowhite’s trucks delivering gasoline, kerosene, fuel oil and bulk oil. Snowhite’s kerosene truck was garaged at Kratz’s Garage on Calverton Road. The gasoline trucks were stored at the yard of the American Oil Company in Curtis Bay.

Although Snowhite had never expressly said that Henderson should “keep ²⁹⁷ the trucks”, Henderson testified that if after making deliveries “I wanted to go somewhere * * * well all I had to do was just jump in the truck and go * * * I’ve been practically on my own insofar as the trucks is concerned.” He stated that no complaint was made about using the trucks for his own purposes. Henderson lived about two miles from Snowhite’s Pearl Street office and approximately five miles from the American Oil Company yard at Curtis Bay. Snowhite knew that Henderson had no automobile of his own. Pie admitted that from time to time he had allowed Henderson to use any of Snowhite’s available trucks and even Snowhite’s own automobile to go to the American Oil Company’s yard in Curtis Bay.

These trucks were Henderson’s usual mode of transportation to the American Oil Company yard. Henderson took one of Snowhite’s trucks to Henderson’s home numerous times for the night after Henderson had completed his deliveries. Snowhite knew of this practice and never obj ected to it. Henderson used the trucks whenever he wished for his personal purposes, including going fishing after his deliveries were completed.

It was common knowledge among Snowhite’s drivers that Henderson was very much interested in fishing. Snowhite knew that Plenderson had been using one of Snowhite’s trucks to go fishing about twice a week from 9:00 a.m. when Henderson had completed his morning deliveries until 5 or 6 p.m., for a year prior to the accident. Henderson kept fishing equipment, including a rod and reel, in every truck. One of the fishing rods in the truck involved in the accident was owned by Snowhite who had loaned it to Henderson when Henderson used the truck to go fishing.

Snowhite had expressly permitted Henderson to use a stake-body truck, owned by Snowhite for moving furniture and other personal property of Henderson’s friends. Henderson expressly denied Snowhite’s contention that on the day of the accident, Snowhite had told Henderson that after his morning deliveries “that would be all for the day” and that the gasoline truck should then be taken back to the American Oil yard. On the day of the accident, Henderson reported for work at about 7:00 a.m. at Snowhite’s office on Pearl Street in Balti ²⁹⁸ more City. He received an order for a gasoline delivery to a customer at Pine and Saratoga Streets, and orders for some kerosene deliveries which were to be made from a different truck.

He took Snowhite’s gasoline truck, which he had parked on Pearl Street the previous evening (as he often did for convenience) to the American Oil Company yard in Curtis Bay to load it with gasoline. He finished loading the gasoline truck about 9:00 a.m. and completed his gasoline delivery at approximately 11:00 a.m. The gasoline customer was only about a half block from Snowhite’s office on Pearl Street. Henderson then parked the gasoline truck on Pearl Street, three or four houses below the office, and put the delivery ticket through the door of the office.

He did not feel like making the kerosene deliveries right then, so he went to a bar at Pearl and Saratoga Streets which had been his “stop-off * * * for the last couple of years anyway.” He stated that it was there that Snowhite “could always find me in case anything came up during the day if I didn’t have any orders.” After Henderson had drunk “about, almost a pint of whiskey” he picked up a girl who was in the truck with him when the accident occurred. He took the truck with the girl in it to a place near the American Oil yard for some “sporting”. The accident occurred when he was coming back and was on the way to Kratz’s Garage on Calverton Road in Baltimore City to pick up a kerosene truck to make his kerosene deliveries. Henderson said he had “intentions of doing more work” that day which was the reason for his driving back toward Kratz’s Garage.

In 1959—about two years prior to the accident—Henderson began drinking heavily. He was convicted of reckless driving on February 17, 1959 and again on April 7, 1959, and still again on November 16, 1960. On October 25, 1961, he was convicted of failing to stop at a railroad crossing while driving a gasoline truck, thus making a total of four convictions for moving violations in approximately two and one-half years. Snowhite knew about these convictions, which were for violations while Henderson was driving Snowhite’s trucks.

Snowhite also knew about an accident in which Henderson was involved for which he was not convicted. Snowhite warned Hen ²⁹⁹ derson that if he had any more accidents Snowhite would not be able to get any more liability insurance on the trucks. During the two-year period prior to the accident during which Henderson was drinking heavily, he spent a substantial time every day at the Pearl Street bar. This bar was on the same street as Snowhite’s office, approximately one-half a block away.

Henderson drank whiskey at this bar for approximately 45 minutes to one hour between 7 and 8 a.m. (exclusive of other times), six days a week, immediately prior to driving Snowhite’s trucks. Snowhite knew that Henderson frequented the bar daily during this two-year period and that Henderson drank. Indeed, Snowhite would send over to the bar or go over to the bar himself and get Henderson when he wanted Henderson to drive one of his trucks.

Henderson would then come out of the bar, and thereafter, with Snowhite’s knowledge that he had been drinking, he would get into one of Snowhite’s trucks and drive it. Snowhite admitted that he would go over to the bar occasionally to get Henderson when he wanted Henderson to drive. On one of these occasions the witness Claude testified that approximately four or five months before the accident, Henderson and Claude had just finished their morning drinking, and Henderson was “talking loud” when Sonwhite came to the bar to get Henderson to drive. Snowhite denied that he had knowledge of Henderson’s incompetence as a driver or of his excessive use of alcohol.

He also testified that he would not permit joy-riding. There were, however, in the record inconsistencies in Snowhite’s testimony and discrepancies between his trial testimony and his deposition which would justify the jury in concluding that Snowhite was an unreliable witness and that his testimony in these regards was not to be believed. The evidence in regard to the use of Henderson’s deposition, the permitting of Claude to testify in rebuttal and the references to insurance will be considered when we consider these questions later in this opinion. At the conclusion of the evidence, Judge Grady—quite properly we think—submitted eight issues to the jury and in his well considered charge explained the law in regard to each of the issues submitted.

By its answers to the special issues, the ³⁰⁰ jury found that prior to November 29, 1961, Henderson was an habitually incompetent or unfit driver of a gasoline tank truck; the accident was caused by Henderson’s habitual incompetence or unfitness as such a driver; Snowhite knew or should have known that Henderson was an habitually incompetent or .unfit driver of a gasoline tank truck; and, that Snowhite entrusted Henderson with the gasoline tank truck involved in the accident. In regard to Dyer, the jury found that he knew or should have known that Henderson was an habitually incompetent or unfit driver of a gasoline tank truck, but that he did not permit Henderson to operate the gasoline tank truck involved in the accident. By its answers to issues 7, 7-A, 7-B and 8, the jury assessed the damages for the surviving widow and infant at $90,000, apportioned it $70,000 to the widow and $20,000 to the infant and awarded the widow as administratrix of the decedent’s estate, $4,000. A judgment in favor of Dyer was duly entered and judgments against Snowhite and Henderson in the total amount of $94,000 were entered in accordance with the jury’s answers to the issues submitted as above set forth, with interest from April 22, 1965 and costs of suit.

Snowhite has appealed from that judgment. The plaintiffs and appellees have filed a cross-appeal challenging the alleged error' of the trial court in its instruction to the jury in regard to damages, but presses the cross-appeal in this Court only if the judgment in the lower court is reversed. We have concluded that the trial court committed no reversible error and that the judgment must be affirmed. It will not be necessary, therefore, to consider the contentions asserted on the cross-appeal.

We will consider first the three alleged errors in regard to the evidence and then the principal contention of Snowhite that there was no legally sufficient evidence to support the finding by the jury that Snowhite had negligently entrusted the gasoline tank truck to- Henderson.' (1) Snowhite contended below and in this Court that the trial court had committed prejudicial error in permitting counsel for the plaintiffs to read portions of Henderson’s deposition in ³⁰¹ which he alluded to Snowhite’s insurance and in allegedly admitting into evidence Snowhite’s liability insurance policy. Generally speaking, the law is well established that in an action to recover for personal injuries or wrongful death, evidence which informs the jury that the defendant is insured against liability is not admissible. International Co. v. Clark, 147 Md. 34 , 127 Atl. 647 (1925). See Annot., Admissibility of evidence, and propriety and effect of question's, comments, etc., tending to show that defendant in personal injury or death action carries liability insurance, 4 A.E.R. 2d 761 (1949).

This general doctrine, however, is not only subject to several well recognized exceptions but the modern trend is toward a relaxation of the rule. As our predecessors said in Takoma Park Bank v. Abbott, 179 Md. 249, 263 , 19 A. 2d 169, 176 (1941) : “Moreover, in view of the presumptive knowledge on the part of present day jurors that public liability insurance is required to be carried by persons engaged in certain lines of endeavor, as well as the knowledge on the part of jurors that persons of business prudence and discretion often carry such insurance, the present day tendency is toward the relaxation of the strictness of the rule first announced.” In Casey v. Roman Catholic Archbishop of Baltimore, 217 Md. 595 , 143 A. 2d 627 (1958) we quoted with approval from McCormick on Evidence (1954) §168, which pointed out that there was a group of exceptions to the general rule. 1 The Maryland cases indicate the following exceptions : ³⁰² 1. Where the evidence is relevant to the cause of the accident or the liability of the defendant. Takoma Park Bank v. Abbott, supra. 2.

Where the reference to insurance is made by the defendant or his witness, in which event the testimony is admissible and is subject to legitimate comment and argument. Takoma Park Bank v. Abbott, supra. 3. Where the evidence is relevant to an issue of which of two or more defendants was the employer of the operator of the vehicle involved. Keitz v. National Paving and Contracting Co., 214 Md. 479 , 134 A. 2d 296 (1957).

There were three references to insurance during the trial of this case. The first reference was in a portion of Henderson’s pretrial deposition which was read to the jury. In replying to a question in regard to the knowledge of Dyer and Snowhite of Henderson’s driving record, Henderson stated: “Mr. Snowhite said once if I had another accident, the insurance, they couldn’t get insurance any more. *}* “We were in the office one morning * * * talking * * * about the last accident I had, that’s what it was, if I had another accident, they couldn’t, the truck wouldn’t be insured or something like that.” (Emphasis supplied). In our opinion, this reference to insurance was relevant to one of the principal issues in the case, i.e., Snowhite’s knowledge of Henderson’s incompetence as a driver, and hence comes within the first exception, above mentioned, to the general rule.

The appellant contends that since the statements of Henderson were in a pre-trial deposition and consequently known to be present in the testimony before it was presented to the jury ³⁰³ (rather than an inadvertent reference during examination of the witness at the trial), the reference to insurance should have been deleted prior to the reading of the testimony to avoid possible prejudice to the defendants, as was done in regard to a pre-trial statement in Casey v. Roman Catholic Archbishop of Baltimore, supra. But the Court in Casey pointed out that: “Where the deletion would produce a substantial alteration of the meaning of the phrase in which the reference to insurance was used, the exclusion should not be permitted.” (Page 611 of 217 Md., page 634 of 143 A. 2d). In our opinion the elimination of any reference to insurance in the statements of Henderson quoted above would have indeed produced a substantial alteration in the meaning of those statements and such an exclusion should not have been permitted, even if requested. The second reference to insurance was made by the defendant Dyer.

In reply to a question put to him by his counsel on direct examination in regard to his arrangement with Snowhite for delivering petroleum products for Maryland Oil Company, Dyer stated, in part, the following : “Mr. Snowhite hauled all the small deliveries and I paid him so much a gallon for doing it. It was his truck, his driver, his insurance. He maintained the truck he had; he took care of everything. I had nothing to do with it.” (Emphasis supplied).

This statement was made by a defendant and falls within the second exception already mentioned. Snowhite contends that the rule should not apply to a co-defendant and Snowhite should be permitted to object to Dyer’s statement in regard to insurance. But counsel for Snowhite did not object or move to strike out Dyers’ reference to insurance, so that the point is not preserved on appeal. See Maryland Rule 885.

The third reference to insurance arose when counsel for the plaintiffs used a liability insurance policy upon the gasoline tank truck showing that it was issued in the name of Snowhite as an individual and Dyer, trading as Maryland Oil Company, in cross-examination of the defendant Dyer. This policy was exhibited to the witness Dyer but not to the jury and the policy was not offered in evidence as was suggested in Snowhite’s ³⁰⁴ brief. Dyer admitted that he was aware of how the insurance was carried, that he had been in touch with his own agent to have the policy written and had furnished the American Oil Company with notice of the insurance. The trial court had previously not permitted the use of the policy prior to Dyer’s statement because it was not offered upon the issue of agency, but of control and to that time the trial court was of the opinion that the possible prejudice to Snowhite overbalanced the possible probative value it had on the issue of control of Henderson by Dyer.

After Dyer, however, mentioned insurance as above set forth, the trial court permitted counsel for the plaintiffs to examine Dyer in regard to the liability policy to show that not only was Snowhite listed as one of the named insured but that Dyer was also named as one of the insureds. This was proper cross-examination. It was relevant to the issue of whether or not Dyer did have sufficient control over Henderson to have permitted him to use the gasoline tank truck on the day of the accident. At that point there could be no prejudice to Snowhite in the use of the policy in cross-examination as the evidence that Dyer was also a named insured along with Snowhite would tend to be favorable to Snowhite rather than otherwise.

This cross-examination by plaintiffs’ counsel which, in effect, corrected the implication of Dyer’s testimony that Snowhite was the sole insurer, did not “make insurance an issue” as was done in Taxi Operators v. Kern, 178 Md. 252 , 13 A. 2d 374 (1940) where after a witness for the defendant testified in regard to liability insurance coverage by the various automobiles, counsel for the plaintiff even called the agent of the insurer and further developed the matter of insurance. 2 Snowhite complains that the trial court did not specifically instruct the jury in its charge that the inclusion of the named insureds in the liability policy would have no effect upon Snowhite. In our opinion, the trial court’s charge which limited the ³⁰⁵ jury’s consideration in reference to issue 5 (entrustment by Snowhite of the gasoline truck to Henderson) to the evidence in regard to the relationship that existed between Henderson and Snowhite, without specific mention of the policy, but specifically mentioned the policy and the two named insureds in connection with issue No. 6 (permission of Dyer to Henderson to use the gasoline truck on the date of the accident), properly presented the matter to the jury. The jury’s answer “No” to issue No. 6 and the amount of the damages assessed by the jury indicate to us that the reference to the policy did not prejudice Snowhite. We have concluded that there was no prejudicial error in this case resulting from the references to insurance.

(2) Snowhite contends that the trial court abused its discretion in permitting the witness, Mitchell Claude, to testify because his testimony was not rebuttal testimony and he was not listed as a witness in the plaintiffs’ answers to interrogatories. The witness Mitchell Claude was located just before the end of the trial. His name, of course, did not appear on the list of names of witnesses given by the plaintiffs’ answers to interrogatories, but it should be pointed out that in that answer to interrogatories, the plaintiffs advised the defendants that the investigation was continuing and that the defendants would be advised of the identity of any person whom subsequent investigation would disclose. Counsel for the plaintiffs did notify counsel for the defendants on the morning of April 21, 1965 that the witness Claude had been located and what his testimony would likely be.

The defendants objected to Claude being allowed to testify for the reasons already stated. The trial court overruled the objection and Claude thereafter testified. He testified that he had known Henderson for 12 or 15 years as a friend and they drank together on