*1 ment was upheld, the warrant and the bill of particulars us, legally indistinguishable from those in the before case and much was similar to that here. testimony law,
In the record we find no errors of to sus- nothing tain the contention appellant’s that the trial was clearly judge wrong on the facts. with
Judgment affirmed, costs. AND PAVING CON KEITZ NATIONAL TRACTING COMPANY et al. Term,
[No. 1956.] October *4 Original opinion 30, July 1957. filed Reargument ordered on question negligence and amount damages July 1957. Motion rehearing on question master and servant
relationship appellee August 21, 1957, denied Sep- fled tember 1957.
Opinion Reargument November After fled *5 Dissenting Opinion November Reargument After filed
1957: J., before cause was argued reargued Bruñe, C. Prescott, Collins, Henderson, Hammond JJ. George (on arguments) Buckmaster both Everett L. with whom original Clarke (on argument), L. Buckmaster, White, White, Jr., Mindel & George W. brief, the appellant. Clarke on the for and Jesse argument) Franklin Allen (on original G. Piper Jr., whom were with Slingluff, (on reargument), brief, and Con- Paving for National & Marbury Company, appellee. tracting Court. opinion J., delivered
Prescott, in the Court of Common Keitz suit brought H. Ernest he received when injuries City Pleas Baltimore bus truck with dump operated he was collided operating May Ogle; He named as defendants: Elizabeth Lloyd Ogle. truck Sudbrook, operated by Ogle was the owner of the who Sudbrook, Redmond the son general employer; and his *6 busi- Sudbrook, trucking her managed who May Elizabeth Contracting Company ness; and Paving and National at hauling was truck for which the the company (National), directed a verdict The judge of the accident. trial the time National, the jury and and in of Redmond favor Sudbrook in of the $70,000 of favor the sum returned a verdict for May and Ogle the defendants Sud- plaintiff against Elizabeth that judgments It is from these three brook (Sudbrook). appealed. below—the here —has plaintiff appellant clear morning 10:10 in the on a at about July On being by and driven by a truck owned day, dump Sudbrook its Road north of in direction on Pimlico southerly Ogle Avenue, Baltimore, crossed intersection with Greenspring on left of of the and crashed head to the the center road over and owned the Baltimore Transit by Company into bus Keitz, driver, direction northerly its by operated Keitz and mishap Pimlico Road. was hurt severely left his injuries suffered which required amputation en- Keitz’s bus was below the knee. admitted that leg Ogle did road, Keitz not have on its own side of tirely he do with the accident thing except happened there, that at the point be unfortunate to be and enough accident, of the Keitz his own side had far off on gotten road as he could get. accident, was informed morning Ogle
On mechanics, that National one of Campbell, Melvin Sudbrook’s from T. Harry a load of or dust wanted limestone filler Texas, 17,500' Maryland. Ogle Campbell, picked up pounds it to hauling of the material at National Campbell's was load, when the up accident occurred. When he picked be- he for his on National’s it own name receipted by signing or half on a ticket made out National. or slip Limestone water, like es- filler dust it shifts powdery because when it called a “wet pecially suddenly, brakes are applied A the truck con- load.” shift the load could throw out of stated, trol, it he did shift Ogle although admitted brakes, on this occasion he he testified that when his applied this had do with the nothing to accident. of manufacturing pav-
National was in the business asphalt Drive, Baltimore, at ing material 4200 Menlo Maryland, where it operated asphalt maintained mixing plant there, road which was equipment parked trucks and “usual contractor’s In manufacturing connec- equipment”. business, tion with its National thirteen to fifteen operated trucks which fleet eight dump were trucks. Its dump and, trucks and drivers wholly inadequate its needs its when business was closed except down because weather from November to March was forced April, to hire additional trucks daily from dump drivers Sud- In brook. all of National’s additional trucks and drivers furnished Sudbrook. trucks hired from five were owned Mrs. Sudbrook, who took over business previously operated *7 October, her by husband before his death in Although business, Mrs. of her the books she entrusted kept Sudbrook son, its her management active to Redmond. While Sudbrook and furnished trucks drivers to a few haul other concerns to businesses, required materials their principal Sudbrook’s National and in patron was as in when Sudbrook business, took over National was for about responsible business. Sudbrook’s 80% In furnishing addition to trucks and drivers to National National, since sent men fill jobs for Sudbrook various such as shovel or roller take operator, or to the places absent National employees whenever needed them. Between 15, 1955, 20 and November December two had Sudbrook men there near until “pretty steady” shut plant down. Redmond himself National’s repaired trucks equipment, went on call if out National’s trucks broke down and ordered for required parts National’s account. National and Sud- also, trucks, agreed brook at least be- when Sudbrook’s business, by in its ing signs used National should have metal affixed sides of the dump trucks National’s bearing and name. eagle emblem dealings business were on with
National’s carried Sudbrook and friendly informality with and while there no close was them, between they written contract did have certain verbal adhered which both to in their deal- agreements they business at the made they the oral agreement In together. ings towas it was agreed of each Sudbrook year, beginning trucks dump the additional furnishing for responsible time, and, the same parties at National daily by needed for into National’s for the hauls year tonnage prices also set “Linthicum, and Masonville”. Campbell’s from plant be- usually were made for each work Arrangements day’s Redmond in the when evening o’clock tween four and five between their distance walked the short or telephoned either trucks, not for a hired the it was National When premises. If they hauling by were by day. but particular job ton, hour, hour, by National paid Sudbrook Almost National every Friday, the ton. was paid Sudbrook on account paid a “substantial amount” paid Sudbrook at the end of the month. in full their tonnage would turn over drivers
Although Sudbrook’s Sudbrook, the men day the end of each hourly tickets at basis, whether weekly salary on a paid Sudbrook drivers, her hired and fired worked or not. they from their taxes withholding security collected social their salaries and workmen’s paid compensation. Each truck, he which himself particular was to a assigned driver at premises gas, serviced oil respect Sudbrook’s his Ogle, (cid:127)water radiators. it so was happened, using truck time filling the accident but regular at truck for an absent driver and had not driven the particular before. *8 of trucks
After ascertained the number Redmond Sudbrook work, National wanted for the next he told the drivers day’s following evening they what were to do supposed and if were to or to haul morning, they go told to National for, to, or stone or dust from the Na- asphalt bring quarry tional, tell them what anyone authority at National could fact, on”, to Tn “agreed part do. it was “regular drivers were procedure”, “by agreement” Sudbrook’s given to take and whatever orders or instructions were obey them or other superintendents supervisory per- National’s was in Ogle’s part sonnel. own in this connection testimony as follows: into Na- hauling were During years you “Q. * * * plant Contracting Company’s
tional Paving sand, instance, and Mr. if, hauling you Wirtz, National superintendents or one of other something to to change you hauling wanted Paving Yes, else, what to do? A. would he orders give you sir. take those orders same as
“Q. you Would National Com- Paving Contracting employees Yes, A. sir. pany? instance, if said I want
“Q. you, you For Wirtz sand, stone, me a load of or stop hauling go get sand, than to call something you different did have her A. get back to Mrs. son to orders? Sudbrook No, sir. Your
“Q. understanding was took orders you your Wirtz, Yes, from Mr. is that A. sir. right? Did else over at
“Q. anyone Paving give National was, orders? A. Our instructions when are you you trucks, time, boss can’t ride with all the your you someone, have take instructions I you from can’t them in if bring a load of stone want a load they of sand. words, In
“Q. other whatever National Paving and Contracting Company’s would superintendents do, do, Yes, tell would is that A. you you right? sir.”
“If Mr. would me give orders eve- before, ning say, Go to in a Greenspring bring stone, stone; load of I’d in a bring load of and maybe stone, they wouldn’t want a load of (National) they material, would need some other I’d togo Brooklyn.” * * * work,
“I’d get my orders after evening, and, I like when I came in next say, morning, I’d changed, take orders then from my either Mr. *9 Pav- from National Wirtz, or some representative ing Company.”
[*] * * the National into the you got plant When
“Q. who gave you Company, Contracting Paving or The plant superintendent, there? A. orders your tell us they’d they authority, had any anyone another, they job us from change wanted told us.” just to the National Pav- once you reported But
“Q. orders from your then took morning, you ing and Contract- Paving at National superintendent ,Yes, A. sir.” is that ing Company, right? Redmond to call you And would not have
“Q. No, A. sir. else at anyone Sudbrook’s? National the orders that just You would take
“Q. Yes, sir. A.
Paving Contracting gave you? Did for National asphalt ever haul “Q. you any Yes, sir. A. Paving Contracting? trucks? A. That be in
“Q. would Sudbrook’s Yes, sir. A. would haul the to?
“Q. you asphalt Where Wherever the would be.” job for the
“Q. they doing job City Wherever Yes, A. of Baltimore? sir.” load, weren’t to take the
“Q. they ready Suppose would be there tell what to do with somebody you Yes, A. sir. it? Who would that be? A. The street boss.
“Q. For “Q. Paving whom? A. National and Con- tracting. Yes, Did take orders from him? A.
“Q. you sir.” *10 Redmond confirmed and testified: Ogle’s testimony, anyone you testify Didn’t on a
“Q. deposition, National, tell had authority authority (y)our at but were they what to do? A. That’s right, drivers driver, re- I tell the under instructions. would my for, they and where they of who worked gardless worked, the people were to take orders from they with I ride on the trucks worked for. couldn’t they them. any- aside leaving as National Paving, Insofar
“Q. moment, but, far as National else for the as body concerned, that Paving throughout years, was it A. That’s way right. worked? A. It was of “Q. regular your procedure? part hauling in all the It’s a regular part procedure business.” Sudbrook, R. a former of Cavey, Jr., employee
William the same his duties in his former employment testified Ogle manner as and he took orders same Ogle’s, trucks There that testimony had testified. was also Sudbrook’s National, in the fleet of and drivers with those commingled tasks side did the the same performed same work and testimony. this any side. There was no contradiction ques- at of the main It has been set out some because length tion submitted for our determination. existing
That whether the question relationship principal should between at the time of the accident Ogle National have been trial court concluded jury. to the The submitted and, above, directed a verdict that should not as stated National, sufficient favor of on the there was no ground legally was Ogle that jury evidence which the could determine upon The court when the National’s servant collision occurred. based its of Hood v. conclusion on the belief that case Azrael, 666, 167 Md. 175 A. controlling. was
Before two sub- deciding the main there are one or point, ones a servant sidiary briefly that should be discussed. When belongs such as has Ogle charge personal property master-, to his of another while it is at the placed disposal work, he is for the given performance piece his presumed general employer, remain the servant of some circumstances from the mere fact of special apart hiring of must be evidence personal property put Calic, overcome this Baur v. 166 Md. presumption. 713; Anderson,
171 A. Oil Co. v. U. Standard S. The found when jury Ogle was servant of Sudbrook he also the accident happened. appellant maintains servant of National. The therefore arises: question masters, Can a servant have two not at joint employers, and the same time? This must be answered the affirmative. masters, A em- person be the servant of two may joint *11 act, at one the ployers, time as to one that service provided to one does not involve abandonment of the to service 226; Calic, Baur supra; other. v. Rest. sec. Kimble Agency, 526, 42 v. Wilson A. 2d (Pa.), herein, now
Coming
to the main
it has
question involved
been stated
this
Court that there are
criteria
at least five
that may be considered in
whether
determining
question
of master
relationship
and servant exists. These are:
(1)
servant,
selection and engagement of the
(2)
payment
of wages,
(3)
to
to con
power
discharge, (4)
power
conduct,
trol
the servant’s
and whether
the work is a
(5)
alone,
part
regular business of the employer. Standing
indicia,
none of these
in the
excepting (4),
controlling
seems
determination as to whether
such
exists. The
relationship
decisive test
whether
determining
the relation
master
and servant exists is whether the employer has the right
to
control and direct the servant
in the
his
performance
work
and in the manner in which the work is to be
It will
done.
above,
noted from the
it is not the manner in which the
master
alleged
actually exercised his
to
authority
control
direct
controls,
action of the servant which
but it is his
right
to do so that
Powell,
is important.
Cab Co. v.
Sun
196
572, 578,
Md.
783;
77
2dA.
Charles Freeland
Couplin,
v.
160, 169, 170,
211 Md.
Such Hood supra, v. are easily distinguish- There, able from one at bar. it was held that the bailee truck, and driver of a who was but principally, not exclusively, 492 coal customers coal dealer to deliver
employed by
sacks,
contractor,
and not a servant
independent
an
dealer,
fixed rate
service at a
he
for such
being paid
ton,
entire con
own
and having
his
per
helpers,
employing
deliveries,
require
only
making
trol
the manner of
money
the dealer the
bring
ment
he
back to
that
being
similar
itself. In
this and
distinguishing
the coal or the coal
cases,
Henderson,
Maryland
for this Court
Judge
speaking
801,
Sause,
135, 140, 57
2d
said:
A.
Casualty Co. v.
Md.
bar,
so clear
“In the
we do
think the evidence is
case at
con
as to
that
was an
require
finding
independent
Comes
choice,
in the cases
tractor. The essential elements of
present
Azrael,
641,
666;
of Hood
Washington
v.
167 Md.
175 A.
286;
Satti,
News
A.
Company v.
169 Md.
Co.,
Md.
Metropolitan
Insurance
Henkelman[n]
Life
bar, it
In
at
26 A.
are not
here.”
the case
present
2d
above,
jury
will be seen
testimony quoted
from
concluded,
superintendents
have
that National and its
might
Ogle
control and direct
had
almost unlimited
right
work,
reported
once he had
performance of National’s
from
hauling
to National.
his
duties
While
involved
principal
sources,
testimony
three
there
in the
nothing
different
else
states that
at
of him
require
trips
it was not
liberty
where.
trucks
side with National’s
ran side
Sudbroolc’s
business.
stated
performance
Ogle
of National’s
do,
“whatever
(he)
National’s
told
superintendent
(him)
*12
a
would
National
clearly
do”. This
seems to have permitted
work,
wide
as
latitude in
such
controlling
directing
and
his
of master
servant.
anticipated
relationship
A
case
that resembles
the
many respects
present
Fersner,
H.
A.
v.
F.
C.
E.
Const. Co.
2d 27 (C.
Wolfe
case,
4th),
which Judge Soper
the
In that
opinion.
wrote
the evidence
fleet of
disclosed
subcontractor owned
eight trucks and furnished them with
to a construc
drivers
tion
company to haul
materials to
paving
paving
point
on
and that he
the
and exer
highway,
drivers
paid
wages
the
the
cised
discharge
to
It further
how
right
them.
appeared,
ever, that the
construction
also owned a fleet
company
trucks used for
the sub-
hauling side
side with those of
by
contractor,
subject
sets of trucks were
the same
and both
construction
company’s superin-
direction
control
unloading
hauling.
tendent as to
and also
loading
the course of the
Court said:
During
opinion,
case,
“In the
between
pending
arrangement
involved,
parties
merely
supervision
construction
contractor) at each end
company (the
trucks,
of the
haul of
of the
loading
unloading
but also
direction
and when
general
hauling;
over
it is borne mind
trucks of the
company
those of Gresham
(the subcontractor)
used
manner,
the same
precisely
and that both sets of
trucks were subject
same direction and con-
trol,
it
is obvious that
the company acquired an
authority over
actions of
in-
Gresham’s drivers
with the
compatible
position
independent subcon-
* * *
tractor on his
think
part.
We
that the District
Judge was justified in refusing to direct a verdict
for the construction
company
ground.”
this
case,
As was held in that
and as stated by
Henderson
Judge
in Maryland
Sause,
Casualty Co. v.
supra,
“(w)hether
person whose immediate negligence or misconduct
caused
particular injury was acting at the time as the
of the
servant
person
to be
sought
charged frequently
such
depends upon
a variety of facts that it falls outside of
definite
any
rule and
becomes,
that reason
instructions,
under proper
a ques-
tion of fact for the jury”.
think
We
there was
suffi-
legally
cient evidence to require the submission to the
jury
question whether Ogle was the
servant National when the
accident
also,
occurred.
Calic,
See
Baur
supra;
Williams
Bohlen,
Constr.
Co. v.
189 Md.
under the doctrine of respondeat superior, it may not escape consequences allowing a truck with “bald” tires on the rear to haul tons of material that would “shift like water” in violation of the duty owed traveling If public. we assume without deciding the evidence concerning tires in this case were legally sufficient to raise a jury question
494 to the National would be liable ap- and that negligence as to contractor, were an though independent even Sudbrook pellant the condition in the record that no evidence is still there All injuries. cause of appellant’s a proximate the tires was one, two a negli- elements: consists negligence actionable two, or omission; act omission negligent act or gent of. There injury complained contribute to cause or must to the in not this issue submitting no error was therefore jury. that a new trial informed in the brief appellee’s
areWe it the fact that that intends to offer evidence be granted on all insurance liability Mrs. carried automobile Sudbrook and that National had no her trucks and her operators, This such insurance on Mrs. trucks operators. Sudbrook’s to, ; was submitted the trial court passed upon, by question As the holding testimony court such inadmissible. case remanded, the ruling determine whether must be we shall Maryland question correct. Rules 885. as Usually, is im- to whether a has or has obtained insurance If, however, there be to be legitimate purpose material. evidence, it served the introduction of such proper both that Mrs. admit same. We think that the fact Sud- trucks and liability brook carried insurance her drivers into and that National did not should have been admitted evi- dence for limited all circumstances purpose showing and Na- bearing upon existing Ogle between relationship occurred, servant when the collision jury tional’s Abbott, should be so informed. Takoma Park Bank v. 179 249, 262, Lemmon, 169; Md. 19 Rhinehart 181 Md. A. 2d v. 279; A. 2d Cushman Co. (Ohio App.), Smith 628; 2d N. Cushman Bernick App.), Co. v. N. (Ohio E. E. 446; Proc., 9C, 2d Cyc. Auto. Vol. Blashfield, Law secs. also We are informed brief that appellee’s trial, of a new event will expected appellant Ogle call and will Mrs. witnesses seek to Sudbrook treat them as adverse witnesses under Art. Code (1951) 8; sec. and that National contends insofar as the examina- of Ogle tions and Mrs. bear on the as to question *14 servant, they whether was National’s are adverse Ogle in fact are not adverse witnesses witnesses as National and cannot, as on appellant, accordingly appellant issue, examine either under statute. The record fails to disclose that this matter was the court be- “presented” to low; we not called it at consequently upon are answer this time. Rules 885. Maryland noted beginning,
As was at the there are three judgments which upon appeals been taken. The in of have favor below, Sudbrook, the defendant Redmond for costs was neither brief argued nor appellant’s orally, and bemay considered as abandoned. We are requested by the appellant to affirm the in his favor judgment against Mrs. Ogle and Sudbrook, and to reverse the in favor of National for costs and remand the same for a new trial the sole issue as to whether Ogle was National’s servant at the time of the accident, treating issues of negligence and the of amount damages as res judicata. We have concluded that we would like that question reargued. No reason has been assigned or argued why as to the appellant’s judgment Ogle and Mrs. Sudbrook should not be affirmed. will We therefore affirm the judgments costs, favor of Redmond for Sudbrook and the judgment in favor of the appellant against Ogle and Sudbrook, Mrs. but reverse the judgment in favor of National for costs and remand the same for a new we trial when have reached a decision after hearing the reargument upon the question mentioned above. As the other appeals two involved little any added expense, the appellee will be directed to pay the costs.
Judgment 13, 1956, Dec. of favor the appellant against M. Lloyd of
Ogle and Elisabeth May Sudbrook affirmed.
Judgment 13, 1956, Dec. of favor Redmond court of for costs affirmed.
Judgment Dec. of favor the National Paving and Con- reversed, trading Company costs trial; a new case remanded for costs; re- appellee pay argument the question ordered on amount and the negligence damages. after the Court
Hammond, J., delivered opinion reargument. below, Keitz, the result lost a plaintiff leg who *15 truck, recov-
a collision between he was and a driving a bus truck, a the of the and against Ogle, driver judgment ered referred to as against May (hereinafter Sudbrook Elizabeth A verdict the of directed “Sudbrook”) owner the truck. Contracting in and granted Paving was favor of National for whom “National”), referred as Company (hereinafter Keitz truck at the time of the accident. hauling the was v. National in an as Keitz opinion reported and appealed, Co., A. 2d and 214 Md. Paving Contracting and against Ogle affirmed the judgment we Sudbrook National, in reserving the of judgment and reversed favor as follows: questions presented, one of the reargument the the affirm appellant “We are requested Mrs. in and Ogle his favor Sud- judgment of brook, favor and to reverse a new remand the same for National for costs and Na- Ogle to whether on the sole issue as trial accident, treating at the time tional’s servant of damages the amount issues negligence of that we would as We have concluded res judicata. reargued.” that question like par- National National. Ogle, Keitz sued isAs often before a jury. which was trial ticipated Keitz, true, discovery procedures, as result of a now the de- by testimony largely his case presented plaintiff, case was The defendants’ witnesses. their fendants and the witnesses cross-examination to the jury offered of the plaintiff’s At the conclusion plaintiff. called by case, verdict, National was let out on a directed Sud- brook offered apparent. no for reasons that seem testimony Ogle, to all intents and his purposes, negligence, admitted either circumstances were such not to permit minimization, refutation or of contributory negli- or a claim The gence. extent injury and duration Keitz’s be, not, disability could and were hardly seriously questioned. The unfortunate lost man a his life leg; earnings, expectancy, and medical expenses were not in live dispute. only issue remains case was one that still to be answered n —was Ogle a servant National? It argued earnestly that National’s upon granting of verdict, motion for a directed no offer longer it could evi- dence or prayers, participate argument jury, remittitur, file or a motion for a new trial it and would be inherently unfair and burdensome to it judg- bind ment rendered it when was no is urged case. It longer that it would just reasonable or to require litigant in National’s either to his for a position forego di- request rected verdict or suffer vicissitudes It is action. hand, suggested, on the if one so fails to situated make motion, he be the of an may victim unjustified jury and, other, verdict on the that if he makes the motion and *16 be granted, not his co-defendants may adequately his protect interest.
We think the judgment against Ogle should conclude National as to the of Ogle’s issues negligence Keitz, suffered damages and that the case should be remanded for the sole trial on issue of whether was a Ogle servant of National. Coast v. Balti M. & C. C. E. Lines of more, 256; 190 Md. C. & O. Canal Co. v. Commis County sioners, 201, 224-225; Rules, 3, 57 Maryland Md. e 315 605 At National, d. common law Sudbrook and who liable, all, of wilful active but guilty or if negligence at respondeat tortfeasors, the doctrine of superior, were joint each entitled if potentially contribution was the Ogle serv Restatement, ant of each at the time of the accident. Resti tution, 99, 85, C, Sec. Title Sec. Con- “Indemnity
498 1
tribution between jurisdic Tortfeasors.” Cases from other tions agree.2 Maryland Balto. & might agreed. well have 414, Ohio 404, R. Co. v. et County, seq.; Howard 113 Md. Commissioners, C. & O. Canal Co. County supra. v. In ampli- event has any by statute declared and Maryland 539, fied the common law on the Chapter subject. Laws 1939, 50, Maryland 1927 (Code, provided Art. 13), Sec. was recovered in tort defend- against joint ants, them, there was a between of contribution right one more his share paid judg- who than could execute on ment Mary- others. 344 of Chapter Laws 50, 1951, land Art. enacted as the (Code, 20-29), 1941 Secs. law of Maryland Among most of Uniform Contribution 20 tort- joint Act.3 of Art. 50 defines Tortfeasors Section “* * * or sev- persons feasors be: two or more jointly person the same erally property, liable tort for injury all or has been recovered against or not judgment whether 21 “The contribution says: right some of them.” Section 22 recites: “The exists joint tortfeasors.” among Section person against judgment by injured of a recovery tortfeasor.” joint other discharge tortfeasor does not joint impair “This sub-title does not any that: 25 provides Section law.” existing under indemnity right following example Restatement, Restitution, 99, gives the 1. Sec. employ agree to B railroads applicable “The A and of the law: jointly. agent B maintained A and at a station as station C injures negligently joint employment, scope C his While A, A judgment against A is en satisfies. which DD. obtains B.” from titled to contribution Bussing, v. Bailey Horback’s Administrators 2. v. 28 Conn. 455; Hurley Grasberger Elder, (Me.), 104 A. 815; v. 33; Hobbs 18 Pa. Ct.), (Pa. Super. (reversed in 6 A. 4 A. 2d & Obert Liebert 186 policies covering the the terms of the insurance because 2d general principle). respective tortfeasors overcame provided for third- 26 of Art. enacted Section replacement procedural practice and also was right joint delicto, judgments provision over ex with the as to Maryland replaced by payor. in turn to the Section joint judgments d, the same relief as Rules. Rule affords *17 tort, third- 315 a to f deal with as 26 of Art. 50 Rule did Sec. practice. The potential right of contribution that each tort joint feasor has another against constitutes him law an indemni him, such, tee tanto pro and entitles other joint to have tortfeasors, so, if he to in the calls them upon participate do defense of the law suit claimant or be to the subject outcome of the action as if Re just had they participated. statement, Restatement, Res Judgments, 109.4 also Sec. See titution, 76, f; h; 86, Comment Comment Sec. Sec. Sec. c, 1; Restatement, Comment Illustration Judgments, Secs. Ed., 107. 1 freeman on Fifth Judgments, 444- Secs. inclusive, both the rule is well settled that agrees liable over tort as indemnitor is or contributor con cluded as to the to right person of the injured recover and persons,
4. “In action for contribution between two where consensual relation between them is such that each of them is required pay to entitled contribution from the other if. to dam- ages upon person person a claim third where third judgment separate has obtained a valid on the claim in a action against them, one of both are bound as to and extent existence liability action, person gave in that if the sued defendant requested to the other reasonable notice of the action and the other participate to in the defense.” comment to this: “a. this Sec. The rule stated in upon principle underlying operates is based 107 and Section § right under the same circumstances. there is Where a mutual contribution, person pro each is an indemnitee tanto each there- participate fore is entitled have the other or be defense subject to the vicissitudes of the action. The Comments on Clause (a) applicable. Thus, indemnitee, § are as in the of an case one entitled to contribution who has not notified the contributor against may of an action him be able to recover for contribution expenses payment of the trial and for made after an unsuccess- good faith, though ful defense if he acted even the contributor personally this, himself As liable. see the Restatement of Restitution 83.” § gives example: jointly Illustration 1 to Sec. 109 this “A and B employ driving, C to drive their automobile. While so C harms D, brings against ground respondeat who action A on the su- perior. seasonably join A B invites him in the defense of the Judgment B given against action but refuses. A. This is conclusive (All in an A action B contribution." em- phasis supplied.) *18 500
the amount of indemnitee damages, by judgment a the against or contributee who had notified him to defend.5
What
the Restatement
is
and Freeman
on
agreed
have
sometimes referred to as
in” one
is liable
“vouching
who
in part
whole or
to an original
very
defendant. Under
be
ancient
a warrantor of title to
could
practice,
property
a
for
brought
as
to defend
a
writ
the
party
by
special
pur
Maitland, History
writ of
2
the
voucher.
Pollock &
pose,
158-163,
Law,
Ed.,
71,
English
Note p.
pages
and
Second
of
allowable,
209, 662, 664.
In cases where the writ was not
the
on the
by
judgment
binding
made
analogy
over if notice to defend was
responsible
given.
practice
the
by
over concluded
parties responsible
of
notified
making
been
the common
for centuries.
part
has
of
law
judgment
the
of
& O. Canal
has been held
law
C.
Maryland.
It
Commissioners;
R.
v.
Balto. & Ohio
Co.
County
v.
Co.
supra.
application
both
Illustrative of the
County,
Howard
in Washington
Light
the
Gas
opinions
the
are
principle
of
316, 329, 330,
Columbia, 161 U.
40
v. District
Co.
S.
L.
of
712, 719-720;
Waterbury v. Clark
99
City
(Conn.),
Ed.
579;
Bank
American
Co.
Surety
A.
and State
1172, there
S.)
N.
In 40
R. A. (N.
As must be
it is
if one
actually
held that
liable over
trial,
he
participates
aby
concluded
judgment against
*19
the original defendant as to
and
of
amount
liability
damages;,,
even
he does not
is
though
become
of record. This
a
Commissioners,
flatly
by
held
C. & O. Canal Co. v. County
supra, at
of
pages 224-225
57
too Washington
Md. See
Gas
Light
Columbia,
Co. v. District
supra; Hoskins v. Hotel
of
423;
Randolph Co.
211
(Iowa),
N.
Masters
W.
v. Pardue
(Ga.
704;
86
App.),
2d
Company
S.
Buick
E.
Lowrance
412,
Mullinax
Restatement,
87
(Ga. App.),
2d
S.
414.
E.
Restitution,
Restatement,
and
Judgments, make
apparent
the person
is
over
the
responsible
duly notified
result
6
is the same whether
appears
he
not.
or
It is apparent also that it
matters
on the conclusiveness
of the claimant’s
right
recover
the
amount of damages
whether one
sought to
held as an
or
indemnitor
as a con
notice,
tributor
is vouched in by
is sued originally
the
co-defendant,
plaintiff
aas
or
impleaded
is
under third-party
practice
an
original defendant.
v. Baltimore
O’Keefe
Co.,
345;
Transit
201 Md.
Rule
Maryland
f
315
inclu
sive, and
Rule
particularly
315 e 3. See “Contribution —
Methods
97;
Jur.,
Enforcing,”
Md.
R.
39 Am.
L.
of
Parties,
90, 91;
Secs.
between
“Indemnity
Negligent Tort
Rationale”,
A Proposed
517,
37 Iowa
R.
at
L.
feasors:
553, et seq.; “Procedural Aspects
Securing Tort Con
of
tribution
the
Action”,
in
Injured
47 Harvard L.
Plaintiffs
209;
Allen,
R.
Contribution;
Wendell
“Joint Tortfeasors;
Record,
Procedure”,
Indemnity;
7,
Daily
1948. There
June
Restitution,
86,
76,
f;
81,
6.
h;
Sec.
Comment
Comment
Sec.
Sec.
c; Judgments,
106, pages 505-509;
Comment
pages
Sec.
Sec.
511-517,
Seavey
to-
all referred to above.
*20
the
against
must be
assert his claim
given
opportunity
Teer,
To
The is appellant who plaintiff does seek a new trial against National issue any except is agency Ogle. That the one issue decides whether indemnitor, National was a joint pro tortfeasor and so an noted, ianto. As we have we think that any loss suggested National is rights by It largely illusory. participated trial all through the taking of and could con- testimony have tinued on until the if it end had so desired. question conceded, negligence substantially and all evidence on the question damages would seem to have been presented. There is no reason which Keitz suffered why damages should be more or less whether responsible alone is Sudbrook for them or whether both National re- are sponsible for them. This Court given elasticity dispo- sition Maryland Rules. Rules 871 a and 872 a and b *21 would seem to enable the Court properly dispose any unusual circumstances in the which rule we here down lay not in might be the interest of or would work justice hardship or unfairness on of the any parties.
The view we take of case the the took the view Court Baltimore, in There supra. Coast v. M. & C. C. E. Lines action, Coast, the in a original impleaded defendant tort East Baltimore let City City as a defendant. The was third-party evidence, out on a directed verdict at the close of all of the Lines, the settled jury against found Coast which East the City On the in favor of judgment. appeal, judgment on the directed verdict was This held and reversed. Court that on the retrial the issue of the only directed expressly of the be to the negligence City presented jury found the to be the court should jury City negligent, the settled enter for contribution of one-half of judgment by The amount of was concluded judgment. damages in that tanto City, pro verdict with the indemnitor jury’s case, share of the benefit of of the its posture getting Lines, the settlement effected Coast indemnitee by East took tanto.7 In substance that is the view the Court pro Commissioners, supra, v. where County O. Canal Co. C. & in the trial but was not a party the indemnitor participated un both with principle record. This result is accord claimed indemnitor the rule as to derlying vouching 1951, Code, 26 of Art. 50 former provisions Sec. 3, (ob e which provides Rule 315 Maryland now found third not has amended plaintiff where viously otherwise, the adjudi that “Unless the court orders party) be res shall plaintiff to the liability cation of the defendant’s as to plaintiff to the third as well adjudicata Co., Ry. Oshawa v. Topping defendant.” too Street See ; 618, 263 (1931) 2 D. R. Stansel R. 66 Ont. L. (1931), L. 345; R. and 47 Harvard McIntyre L. C.), 74 2d (N. S. E. 209, 221, precise there is a discussion supra, where only proportion of proper indemnitee can recover That paid) legally actually paid (and is shown should have he what Co., supra (voluntary must settlement Transit v. Baltimore O’Keefe Teer, (judgment supra fair), v. Nello to be L. shown Stem only ceiling); Free- but not conclusive consent as amount says: man, cit., fact op. p. “The Note Sec. except it the rule take out of consent does only presumptive conclusive evidence.” rather than *22 that results before us and of the anomalous situation is not if on all the issues ensue a new trial was might had the of the indemnitor potential merely liability debtor. the of whether is for trial on issue single The case remanded the acci- National at the time of Ogle or not servant of dent. after filed the J., following dissenting opinion
Prescott, reargument. the ma- I unable to concur with
Unfortunately myself find is will literally in It one that filed this case. jority opinion is based entirely affect numbers future trials. It untold to contri- theory potential right upon Sudbrook National; she bution from did not yet complain, did not appeal. It be borne is a novel one. should
Apparently question who has below is plaintiff only mind that they taken concede appeal parties an here. Counsel for all one, all fours with present were unable to find a case on it cites to claim that and the does not seem majority opinion contained analogy all fours with it. The nearest by any therein, Baltimore, Md. Coast M. & C. C. Lines E. note with I shall fully 58 A. will dealt later. 2d however, being that the here considered passing, question discussed, authority there a citation of single was not nor was thereon, in that case. Surely, offered filed opinion control the important prac such would question, all similar determined being tice of cases Maryland, contains thirteen (the present majority opinion pages the Bar were deals with this subject alone) public and least, entitled, in the opin at some discussion thereof have to contribution potential right ion. Also owner of di appealed therein from the the motion granting rected verdict.
If we assume that the plaintiff’s appeal protected Sud- National, brook’s contribution from potential right is, opinion, ruling my conclusion reached majority short, joint In that when two alleged still not it holds right. defendants, are tortfeasors sued as if one makes a motion for a directed verdict and it is the one to whom di- granted, bound, rected verdict granted appeal, reversal on upon trial, subsequent proceedings at the although per- mitted to participate therein. The of counsel at responsibility trial and, table oftentimes is grave my weighty, mind, this will ruling add to It furnishes immeasurably. *23 little consolation to that if say you make a “bad guess,” you client must your suffer the “vicissitudes” of action. your lawyers New are endowed with the of powers clairvoyancy, litigants be should not to the subjected requirement rest their they fact, such rights In it is the upon powers. claim of the boasted law that one of its is a goals cherished for quest certitude to eliminate from the admin- “guesswork” istration of justice.
The the basis of familiar ruling the and well established of in principle law that an action for indemnity between two who in persons, stand such a relation to each other of them has a of the duty indemnifying other a claim upon third if the person, person a third has obtained a judg- valid indemnitee, ment on this in a separate claim action the against are the both bound as to extent existence of the liability indemnitee, the indemnitee gave to the indemnitor notice of reasonable the action and him requested to defend it, defense, in or the participate but the indemnitor declined or to been jailed so do. This has the law for many years. this, writers, text the With case law and Restatement but nowhere has it been yet that the rule agree, applies said one who has and been a appeared granted to motion for a verdict, or that changes directed usual and customary However, to such motions. relating of practice majority this broaden rule so as to treat a the Court corporation, in the trial and itself of the appeared, participated has availed defense, methods of customary well-recognized on the a who has declined or person jailed same with to footing par- I in in the defense. find nothing authorities cited ticipate opinion, by personal research majority statute State, Rules or Maryland of authorities law this elsewhere a drastic change long that warrants such recognized It is not of a motion a making results for directed verdict. will confront many difficult to foresee of the dilemmas that future. trial counsel litigants be to later may ruling suggested It stated here that forfeit any rights, work nor hardship upon, would no contribution in relation to her to potential right of Sudbrook All that do probably required from National. she herself to the object seasonably this case to was to protect (which of National’s motion for directed verdict granting not do). note an she did appeal (which she and then to did) filed a cross-claim This would be certain had Sudbrook National, the directed objected granting and then noted appeal. verdict laboriously quotations descants with majority opinion I the Restatement am in full accord with
from Law. but, Restatement, after a enunciated principles named, all of the I fail discover careful sections reading seems significant the facts of this case. It their applicability been published quite that while the Restatement has in the opinion reference years, single there number *24 that has applied quoted case from any anywhere prin- to as the herein. to a factual situation such one involved ciples analyse quotations to all of fully I shall not attempt The ones are contained principal from Restatement. of the same shows that reading a casual foot-note Even predicated and conditioned fact upon are explicitly they existed between the parties, a “consensual relation” contribution. As the majority is stated seeking of whom Restatement, 109, section states it Judgments, opinion, operates section 107 under upon based principle 107 sets forth with certainty the same circumstances. Section it begins by under which It operates. say- circumstances * * between two indemnity persons “In an action ing: for continues, for is not one indemnity), case (the present The rule stated this section limitations. “Distinctions and * * * in an a action a by effect of deals with the upon subsequent a action between in- tort a by injured person * * * The indemnity. for rule indemnitee demnitor applies only subsequent actions in this stated Section 508 It
indemnity. does not apply to other actions between the in- demnitor and indemnitee even with reference to the same transaction or subject matter.” It (Emphasis supplied). obvious that these sections are intended to sub- apply only sequent suits between indemnitor and indemnitee where the indemnitee has derived his right indemnity contribu- tion as the result of a consensual relation between the parties. however, majority ruling, is broad to include enough utter and complete strangers, such as in a multi- defendants car collision before, who have seen never each other and be- tween whom there has never been a consensual relation.
The majority opinion Maryland cites e Rules d, as partial for the authority Rule 315 e ruling. had no application to situations such here involved to the prior filing It opinion. applied Na- party practice. third tional was not impleaded defendant, as a third nor was party a cross-claim filed by Rule National. d, ormay later, may not it apply but has no bearing question that has been decided majority of the Court. Also the majority opinion fails to discuss or cita- analyse any tion of authority appellees on the reargument.
Having been somewhat critical of the majority ruling, behooves me to set forth how I think the case should have decided, been which I shall now do.
While the facts of the case a rather unusual situ- present ation (the plaintiff below the text being the only appellant), writers and cases have dealt with the same principles are here In involved. Vol. Freeman on Judgments, sec. 412, we find the following pertinent statement:
“The fact that an action person party to in its earlier does not him the stages judg- bind ment, unless he was also was ren- tvhen it he, If court, dered. by permission of the withdraws *25 it, from the action or is dismissed from so that he is longer no a then the party, of the court over power terminates, him en- judgment subsequently interests, tered cannot affect his he though may codefendants, bound as to his whom he was
509 a nonsuit to Persons as to whom indemnify. bound was on the merits granted judgment was before it; can they are not concluded neither rendered the benefit claim of it.” (Emphasis supplied.) The facts in the Pinnix C.), case of (N. S. E. Griffin 366, are case. present 2d similar to those strikingly Pinnix, City The Griffin and the Gate plaintiff, sued C. D. alleged wrong- Insurance for the Company (Company) Life intestate, ful and death of the when he was injury plaintiff’s the first named struck an automobile owned and driven by defendant, who was the other named defendant. employed by trial, first there nonsuit as to On the was a judgment corporate plain- defendant rendered at the conclusion of evidence, found, en- tiff’s and a verdict was and judgment tered, The plaintiff judgment Griffin. appealed nonsuit, re- Supreme and the Court of North Carolina trial, came on for the Court versed. When case again to the all of the issues at first jury presented submitted servant; contributory negli- master and negligence; trial: defendant, The offered gence; damages. Company, in instructed the no they, that would have prayer jury event, in could excess of those damages given against award in the first The prayer Griffin trial. This was refused. Su- of the issues to the jury held that the submission preme Court correct, failure to the defendant’s grant prayer but the important majority opinion to this makes no reference thereunder, Freeman, Judgments, re or the citations but section general principles in to sections fers to certain broad principles are enumerated these broad The limitations to clusive. judgment binding “The is in section where we find: * * * person covenantor, over because his indemnitor liable upon legal impose him the such as to to the indemnitee relation defend, assuming adequate opportunity given obligation him an [enunciated so. It seem therefore the rule do would only majority opinion] wherein such ob those cases extends * * * upon party ligation Third cannot be called arises. A defend action, showing not to be liable his himself to defend an where necessarily result in a favor will exactly asking him case of to defend.” This is National the case at bar. *26 510 the
was reversible error. the During opinion, course of its Court said:
“When the trial court the motion of non- sustained suit the it as to in the first trial had no appellant connection with the the subsequent proceedings court. It had to be heard on the opportunity no issues presented by and its are not rights decided Therefore, the verdict. it is not the estopped by from to minimize the dam- judgment undertaking the ages to contest amount to be awarded.” States, A case decided the Supreme Court United Co., Fuller George A. Co. v. Otis U. Elevator S. also, illustrates the under consideration. was point Suit the to recover for a brought by petitioner indemnity judgment it in A. George had to in of the decision pursuance pay Fuller Co. v. the McCloskey, McCloskey, U. S. suit, in plaintiff the former was an elevator injured upon Locke, the man in through negligence charge of one He it. was at work for the which was Mackay Company, defendant, some under a subcontract with doing painting which, held, then it was as between the petitioner, parties concerned, The made the defendant answerable for Locke. agree- office under an petitioner building had constructed owner, ment with The Company Hibbs. Otis Elevator Hibbs, elevators, with put had also under an agreement man a somewhat under- upon vague furnished the Locke which, contends, left with the latter standing petitioner, as the servant of the between Company Locke Elevator been case. The had parties present Company Elevator suit, in the first but a verdict joined defendant the court Supreme its favor had been directed below. its right Court observed that the Fuller Company contention that the rested on the Com- primary duty Elevator suit, it in this second could recover pany, (Fuller Company) unless the former constituted a bar. proceedings below, suffi-
At the trial in the court there evidence was its that the retained control Company cient show Elevator accident, at the time of found verdict jury but the was set aside Court plaintiff, judgment on the Appeals ground although former did not make the matter res the case: judicata concluded facts, “In- view of which were not adjudicated open the consideration of there no such pri- a second jury, *27 on the mary of the Otis as will liability part Company sup- port an action for indemnity.” Court reversed Supreme and, so, the Court of in Appeals said: doing facts, “But there in were no whether adjudicated not, the former case or that not to the open were consideration of the this. The Otis jury Company true, was as a it is in the party defendant, joined action, and a verdict was directed its former But if former against pe- even verdict favor. titioner same tried gone had issue was case, fact, in the which was not the it could present not have concluded the favor of the petitioner other, reason, if Otis for for no Company, the Otis was dismissed be- from suit Company 2 petitioner’s fore the evidence was heard.” (Italics supplied.) cited, think the impel
I authorities reason justice, damages ceiling, amount of as to ruling (except which will be mentioned is not res When later) judicata. it could granted, National’s motion for a directed verdict in the It no trial. had no to offer longer participate right or in the to the argument evidence prayers, participate to file for a new trial or a remittitur. Un- jury, or a motion to, circumstances, it is unfair inherently places der these that he litigant require forego an undue burden upon, verdict, or suffer all of the possible a directed request motion, If make the he may he fails to find consequences. in the verdict position having unjustified jury himself 435; v. (N. C.), Watts agree. 140 E. 2. Other cases S. Lefler See Ry. 318; v. Air (S. C.), Continental Ins. Co. Line Seaboard 90 S. E. Hyson I.), Cf. Hackett v. (N. C.), (R. v. Cadsden 95 S. E. Crafts A. 3d 353. 48 hand, against him. On the other the motion he makes be granted, his codefendant or may codefendants have properly prepared being case for presentation, in its financially irresponsible, little interest they may have would, therefore, . outcome. I to the hold that issue as amount of Na damages suffered for which plaintiff, tional be be at may responsible, jury should submitted McNamara, 224, 233, the new Brotman trial. Cf. v. 181 Md. A. 2d Mar- wherein former Chief Bond and Judges bury advocated a new trial on all all defend issues against ants, It where one of had taken the appeal. defendants may Judge noted Chief sat Coast Marbury E. Lines case, supra, but to dissent. failed Baltimore, In the case Coast M. & C. C. E. Lines mentioned, Md. tort two previously against actions involved, Lines, defendants were Coast de original E. fendant, as a third having interpleaded City Baltimore defendant. After verdicts were the City, directed favor of This judgments rendered other defendant. *28 release, latter defendant the settled and a judgments received its reserving to contribution the right against City. and in plaintiffs Coast from the appealed judgments B. Lines of favor the and these based directed City; judgments, upon verdicts, were This reversed and a new trial awarded. Court defendant, that the held who had settled the judgments, contribution, if on trial rendered entitled to the the new jury the di against a verdict because of its City negligence; and special rected that this be in the form of a question submitted verdict, and, verdict, if the the trial did render such a jury for one-half of court should enter a of contribution judgment the the amount of This action not leave open settlement. did However, of the this damages question amount on new trial. A the in was neither raised nor of briefs argued. reading case discloses no as of the complaint judgments size that, any rendered first nor event by jury, request, reversal, the be afforded an to mini City opportunity of a Clearly, mize the the real issue between Coast damages. E. non, vel Baltimore was the of City negligence, and Lines their parties and both to have City, willing rights 513 in ruling 1 settled a determination of issue. find no in herein. any that case that is conflict with suggested amount I the issue of the concerning What have said above case, of damages this would also ordinarily, apply issue for all of But here of negligence. negligence Ogle, conceded, be the practical although this will not purposes, case in ran his future trials. testified that he many Ogle truck with over to his left-hand side of road collided Keitz; operated nothing bus that Keitz did was careless negligent. or National does not contend circumstances, it has to refute Under these testimony Ogle’s. I think it to pass would futile to require jury again upon Ogle’s negligence.
There is one further matter that should be Is considered. the amount of the verdict rendered the first jury ceiling to limit the of amount verdict National possible against the new trial? it Although involves apparent violation the doctrine of mutuality estoppel, rule is general well where settled that of a or liability, any, principal master to a third person is derivative purely dependent entirely on the it is in principle respondeat superior, as case, this on the judgment merits favor or agent servant, him, or even a fixes so far as the maximum limit of judicata res liability, favor master, principal though he was not a to the action.3 Servant, 35 Am. Annos., Jur. Supp., 591; Master and Sec. 112 1169; Law, A. R. A. L. R. Rest. Judg L. ments, Freeman, 1031; sec. Ill. (b), (3); Judgments, Pinnix v. Griffin, supra.
I would hold that if the determines at new trial jury that Ogle was acting National’s servant at the time of the collision, the amount of their verdict should not exceed the *29 amount of the verdict rendered at first trial. at the
Summarizing,
new trial I think
the issues
sub-
mitted to the
should be:
jury
Was
(1),
as the
Ogle acting
opinion
expressed concerning
3. No
rule,
this
far
so
damages.
punitive
relates to
141 A.
Anno.
R.
Cf. Nance
L.
Gall,
187 Md.
servant of
accident?;
National at
time of the
If
and (2),
so, what is the amount of money,
$70,000,
not to
exceed
the plaintiff is
National,
entitled
recover against
as a result
of the injuries sustained
plaintiff?
Notes
also
See
Scott
of
Restatement, Restitution,
pages
are interesting and
of the
rewarding
philosophy
discussions
of the
application
rights
proceed
of one tortfeasor to
the same case
the
against
other to
right
establish
contribution
v. Johnson
51 N. W.
(Minn.),
Gustafson
2d
and Wait v. Pierce