26 A.2d 418 | Md. | 1942
Lead Opinion
This suit was brought in the Baltimore City Court by Paul W. Henkelmann, infant, against the Metropolitan Life Insurance Company and William R. Downs, its *594 agent, to recover damages for injuries received when he was struck by an automobile driven by Downs in the course of his employment.
The accident occurred in Baltimore early on the afternoon of April 12, 1939. The plaintiff, eight years old at the time of the accident, was struck while on the way to school as he was crossing Franklintown Road at or near the intersection of Boyd Street. Near the corner a bakery truck was parked on the east side of the road, while opposite was an automobile. The boy swore that the truck was parked about six feet south of Boyd Street, and that on stepping from the south pavement of Boyd Street he walked in front of the truck and could not see any car coming. One of his schoolmates testified: "Mr. Downs' car swung around in front of the truck and hit Paul. He knocked Paul in the middle of Boyd Street near the manhole pipe." On the contrary, Downs swore that the truck was parked north of Boyd Street and that as he drove around it he caught a glimpse of a child coming from the right about 35 feet north of the corner, and he applied his brakes and swerved toward the middle of the road. The boy received an injury to the brain, and had a convulsion before he reached the hospital. It is provided by statute in this State that in the event of an accident resulting in injury to any person, the operator of a motor vehicle shall within twenty-four hours report the details of the accident to the Commissioner of Motor Vehicles. Code, 1939, Art. 56, § 198. Downs admitted on the witness stand that he made no report of the accident to the Commissioner of Motor Vehicles.
The Metropolitan Life Insurance Company prayed for a directed verdict, but the court submitted the case to the jury against both the company and the agent. The jury rendered a verdict for the sum of $2,500 against both defendants. Subsequently the court entered a judgment non obstante veredicto in favor of the company.
In appealing from the judgment against him, Downs contended that there was no evidence of negligence *595
legally sufficient to justify submission of the case to the jury. The plaintiff and his schoolmate testified that the accident occurred at the street crossing. The Legislature has enacted that all pedestrians shall have the right of way at street crossings in the cities and towns of the State, except where traffic is controlled at such crossings by traffic officers. Code, 1939, Art. 56, § 235. It is the duty of a driver at a street crossing to be exceedingly vigilant and to have his car under such control, and the speed of the car so reduced that he may be able to stop and divert its course at the slightest sign of danger in order to avoid collision with pedestrians as far as reasonably possible. If he fails to do so and an accident results, he is liable in damages for the consequences.Merrifield v. C. Hoffberger Co.,
It is a statutory crime in Maryland for any person to operate a motor vehicle upon any public highway of this State recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway. Code, 1939, Art. 56, § 196. Upon approaching a crossing of intersecting highways, a driver shall have the motor vehicle under *596
control and shall reduce its speed to a reasonable and proper rate. Code, 1939, Art. 56, § 197. Even between intersections, motorists are required to keep a lookout for children who may suddenly come upon the road in front of them. If a child darts in front of an automobile when the driver is obeying the rules of the road and driving at a reasonable rate of speed, and the driver cannot by the exercise of due diligence avoid striking the child, the driver is not liable for resulting injuries. Sorsbyv. Benninghoven,
It was argued that the schoolmate's testimony that Downs' car swerved around the bakery truck and struck the plaintiff is legally incredible in view of his statement that the plaintiff was standing only a foot in front of the truck. The record shows, however, that when the schoolmate was asked whether he was certain that the plaintiff was standing only about a foot in front of the truck, he replied: "Not quite sure, but the car had to swing in. As he swung in, he hit Paul." An accident of this nature happens so suddenly that it is sometimes *597 difficult for a witness, especially a child, to testify with precision as to distance. The schoolmate maintained that the plaintiff was standing in a place of safety. Downs admitted that he swerved around the truck and that the plaintiff had not walked into the street more than three feet. We do not believe the theory of incredibility can be invoked in this case.
The further contention that the plaintiff was guilty of contributory negligence as a matter of law also can not be sustained. To justify withdrawal of a case from the jury on the ground of contributory negligence, the evidence must show some act decisively negligent as to leave no room for difference of opinion thereon by reasonable minds. A child of tender years is not held to the same measure and kind of care required of a reasonably prudent adult, but only to that degree of care which children of the same age and intelligence would be expected to exercise under similar circumstances. Bozman v. State, to use ofCronhardt,
It was contended on the appeal from the judgment non obstanteveredicto that the Metropolitan Life Insurance Company was liable under the doctrine of respondeat superior. This doctrine was founded on the principle that "every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it." Farwell v. Boston Worcester R.R. Corp., 4 Metc., Mass., 49, 55, 38 Am. Dec. 339, 340. The courts, however, have regarded the doctrine with jealousy and have confined it within limits as narrow as are consistent with the true interests of society. Wood, Master and Servant, 2d Ed., Sec. 277. In 1840 the courts in England began to relax the doctrine by holding that it does not apply to independent contractors. In 1869 the Court of Appeals of Maryland, in an opinion by Judge Alvey, observed that the doctrine had been modified by the English decisions, and held that it is not applicable where the employee is "a contractor, pursuing an independent employment, and, by the terms of the contract, is free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, exclusive of the control and direction, in this respect, of the party for whom the work is being done." Deford v. State, to use of Keyser,
In recent years, on account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeatsuperior in the modern commercial world would result in great injustice. It has been suggested that the test in determining whether a salesman is a servant of an independent contractor is difficult to apply in many instances, nevertheless it has been adopted almost universally by the courts of this country. It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant's automobile, even though engaged at the time in furthering the master's business unless the master expressly or impliedly consents to the use of the automobile, and that had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master's business that his control over it might reasonably in inferred. Khoury v. Edison Electric Illuminating Co.,
Downs was employed to sell industrial insurance and collect premiums on his debit, his assigned territory, and was authorized to sell ordinary insurance anywhere in the State of Maryland. He received a salary and commissions. The determination of the issue is facilitated by the fact that he was an agent, and not a servant. The distinction between an agent and a servant is that an agent is employed to represent his principal in reference to some contractual obligation with a third person, whereas a servant is employed to render service to, rather than for, the master. In measuring the extent of an agent's authority, emphasis is ordinarily placed upon the terms of the contract; in the case of a servant, the emphasis is ordinarily placed upon the nature of the employment. The court has already recognized that this distinction may be important in determining the liability of an employer for a tortious act of his employee. Great Atlantic andPacific Tea Co. v. Noppenberger,
Of course, even an agent may be subject to the control of his principal in respect to some portion of the work to be performed, and under such circumstances the doctrine of respondeatsuperior can be invoked. But it has been distinctly held that the doctrine applies in such a case only when the relationship of master and servant existed in respect to the very thing from which the injury arose. Leachman v. Belknap Hardware Mfg.Co.,
At the time of the accident Downs was driving a Chevrolet sedan owned by his wife. It is unquestioned that the fact that an automobile which occasioned injuries while being driven by a servant did not belong to the master does not preclude the injured person from recovering damages from the master if its use was authorized by the master and was within the scope of the employment. Goldsmith v. Chesebrough,
It follows that, since the company did not exercise any control over its agent respecting the means of transportation, and the agent was an independent contractor in respect to the operation of the automobile, the doctrine *603 of respondeat superior cannot be applied in this case. The trial court was therefore right in entering judgment non obstanteveredicto in favor of the company.
Judgment non obstante veredicto in No. 18 affirmed, withcosts.
Judgment in No. 19 affirmed, with costs.
Dissenting Opinion
In my view Downs was merely a servant of the corporation; however, he may have been called an agent.
There being no agreement or direction from the employer restricting the means to be used by him in his work, any usual or suitable means was authorized, and its use was within the scope of Downs' employment. In that situation his use of an automobile was analogous to a use of his own legs.
The American Law Institute Restatement, Agency, Sec. 239, gives the rule in a comment: "If the master directs a servant to accomplish the result and does not specify the means to be used, the servant is authorized to employ any usual or suitable means." And an illustration given is: "P employs A a messenger boy, giving no instructions as to means of locomotion. A's use of his own bicycle in delivering messages is within the scope of employment."
These considerations lead me to vote for a reversal in the first appeal. *604