62 A.2d 284 | Md. | 1948
This is an appeal from a judgment for defendant on a directed verdict in a suit under the West Virginia Lord Campbell's Act. West Virginia Code (1943), Sections 5474, 5475. *475
On September 26, 1945 defendant, who for eighteen years has conducted a trucking business at Westernport, employed one Broadwater, who had previously driven for him for eight years until March, 1944, to drive one of his trucks from Westernport to Hancock to get a load of tomatoes. Broadwater was to go by way of Cumberland and Berkeley Springs.
Deceased lived at Keyser, West Virginia, and left his home there between 3:15 and 3:30 P.M. on September 26, 1945. The uncontradicted testimony of defendant, called by plaintiff, is that: he gave Broadwater instructions not to carry any riders, and to take his time and come back on time, gave him his expense money, and did not authorize him to employ anybody to assist him in any way; in the garage where Broadwater got the truck, and also in the office, where they had their conversation between 11:15 and 11:30 A.M., there were and had been for eight or ten years, when Broadwater worked for him before, notices to drivers, conspicuously posted, that "any driver carrying riders other than helpers will be immediately dismissed from duty."
The same day, between 5:30 and 6 P.M., in West Virginia, about twenty-one miles west of Berkeley Springs, the truck, while going east, overturned, once or more, and deceased was crushed under the truck and killed. Broadwater also was injured and some days later died as the result of his injuries.
There was testimony, offered or proffered, that: a mile or a mile and a half before the accident the truck was going 45 or 50 miles an hour; the road marks indicated that it went off the macadam on the berm or edge of the shoulder for 150 or 200 or 300 feet, then came back, "took to the left side", turned over (once or two or three times) and skidded and came to a stop upside down.
Testimony was proffered, but excluded as inadmissible, that: on the afternoon of the accident, between two o'clock and half past, Broadwater, in Keyser, asked decedent's nephew to go along with him and help him get this load of tomatoes, the nephew said he could not go, *476 and then and there Broadwater asked decedent to go along with him to help him get this load of tomatoes. We agree with the lower court that this testimony was inadmissible and was not a declaration by Broadwater in the regular course of business. On the contrary, the subject matter of the alleged declaration apparently was outside the scope, and contrary to the terms, of Broadwater's employment.
There is, therefore, no evidence that at the time of the accident decedent had any right to be on defendant's truck. Cf.East Coast Freight Lines v. Baltimore,
As the accident and death occurred in West Virginia, defendant's liability, if any, is based upon the laws of West Virginia. Western Union Telegraph Co. v. Brown,
In Christie v. Mitchell,
In the instant case plaintiff contends that there is evidence legally sufficient to show "wanton, wilful or reckless negligence" within the West Virginia decisions. Defendant contends that there is no legally sufficient evidence *478 of any negligence at all, and that the mere overturning of the truck and the running on the berm may as well have been due to some latent mechanical defect in the truck as to excessive speed or other negligence. If we assume, without deciding, that the evidence is legally sufficient to show that the accident was due to negligence on Broadwater's part, we think there is no evidence of any "act intentionally done in disregard of another's rights" or of "reckless indifference to consequences" with "knowledge of existing circumstances and conditions" from which Broadwater was aware "that his conduct would inevitably or probably result in injury to another." Whatever the purpose of inviting or permitting the decedent to get on the truck, it was not intent to injure him. Nor is there evidence of suicide by Broadwater.
Judgment affirmed, with costs.