Hooper v. Brawner , 148 Md. 417 ( 1925 )

Taking the opposite view, Holroyd, J., dissenting, stated what has unquestionably come to be regarded by the weight of authority in this country as the sounder rule. He said: "But in the present case, although the horses were continued in the custody of a driver provided by Bryant, yet as the horses and the driver were to be for the use and subject to the general directions of the defendant, and as the defendant had a right to retain them till the time for which they were hired was expired, and as they were at the time the mischief was done in the use and under the directions of the defendant, I think that the driver was for this purpose in the employ, and in law, the servant of the defendant, and that the defendant was in law answerable for the driver's negligence in the execution of the defendant's orders in such employ, in whatever situation the driver might also stand with respect to Bryant, with regard to Bryant's responsibility for him, at the election of the plaintiff. A person may stand in the relation of servant to two different persons as his masters in two different respects with regard to the same thing, and this even though the service done, or to be done, be special and limited to a single act, as appears in 2 Rolle's Abr. 556, pl. 14."

And Bayley, J., in support of the same view said: "Had the defendant hired the driver, can there be a doubt but that he would have been the defendant's servant? If he leaves it to the owner of the horses to hire him, is he not, in substance, hired by the defendant? If I hire horses of A. and hire B. to drive, B. is undoubtedly, for the time, my servant. Is the driver less my servant for the time, because I hire him and the horses under one bargain, and allow the owner of the horses to select him? He is employed for me; that cannot be disputed. He drives where I direct, and so as I require nothing contrary to my contract with the owner of the horses, he must obey my reasonable commands. He must go where I order; must stop where I require; must go the pace I specify. Though the owner of the horses is, to a certain extent, his master, I am, to a certain extent, his master also. Though the former is his master in general, he has, for a time, let him out to me; and a master is liable for the acts of one who is in his service or employ, though the master who is to be charged is not his immediate employer, but employs him through the medium of another. If I hire the driver, I am answerable for him, if I employ J.S. to hire him, am I not still answerable? I exercise my own judgment in the one case, I leave it to J.S. to exercise a judgment for me in the other, but still it is for me that the judgment is exercised. The service is performed for me. It is my work the driver does."

The question was not regarded as settled by that case, but inQuarman v. Bennett, 6 M. W. 499, Parke, B., in dealing with a case in which the owners of a carriage were in the habit of hiring horses to draw it, and the owner of the horses provided a driver through whose negligence a third person was injured, adopted the views of Littledale and Abbott, JJ., in Laugher v.Pointer and held that the owner of the carriage was not responsible. That conclusion was not final either, and in Rourkev. White Moss Colliery Company, 2 C.P.D. 205, it was modified at least to some extent. In that case the owner of a colliery employed a contractor to sink a shaft in a coal mine, and agreed to furnish him with an engine and a man to run it, whose wages were to be paid by the owner but who was to be subject to the control and direction of the contractor. In that case the contractor was held liable for the consequences of the negligence of the man operating the engine.

In Jones v. Scullard (1898), 2 Q.B. 565, after analyzing the earlier cases, Lord Russell, C.J., said: "Now apply the principles of those cases to the facts of the case before me. What control had the livery stable keeper over the driver while driving the defendant's horse? Absolutely none. The whole control was in the defendant, who could have ordered the driver to go fast or slow, or stop or go on, just as he pleased, or to keep the horse without food, or otherwise manage the horse as he directed. * * * And in such a case, especially if, as here, the driver has driven the hirer for a considerable period of time and been approved by him, and the horse is one the characteristics or peculiarities of which neither the livery stable keeper nor his driver have had any practical opportunity of becoming acquainted with, there is, it seems to me, evidence upon which a jury would be justified in coming to the conclusion that the driver was upon the occasion in question acting as the servant, not of the livery stable keeper, but of the person who hired him." And inHalsbury's Laws of England, vol. 20, p. 267, the general rule deduced from these cases is thus stated: "In accordance with the same principle, a servant who is lent by his master to a third person for the purpose of being employed in a particular way is to be deemed whilst thus employed the servant of the person to whom he is lent, though for other purposes he remains the servant of his master. Such person will therefore be liable for torts committed by the servant in the course of his particular employment, provided that the servant is at the time when they are committed subject to his control and not to that of the master. His liability is, it seems, the same whether the lending is gratuitous or for reward."

Laugher v. Pointer, supra, and Quarman v. Bennett, supra, were referred to by this Court in Deford v. State, use ofKeyser, 30 Md. 201 etc., where it was dealing with the responsibility of an owner of property, who had employed a contractor on a commission to construct a building, for an injury occasioned to a third person through the negligence of servants who, while paid by the owner, were under the control and direction of the contractor and persons employed by him. In dealing with the application of the rule of respondeat superior to the facts of that case it was said: "The greatest difficulty, however, in these cases is in determining, upon the facts, who is to be regarded as the master of the wrongdoer. This of course depends mainly upon the terms and character of the contract of employment. And whether, in the case before us, the parties engaged in the erection of the wall that fell, were the servants of Deford, depends upon the control and direction that he could rightfully exercise over them. If they were at his command and bound to obey his orders and direction, in regard to the work they were engaged in, and could be, at any time he thought proper, discharged by him, then they were his servants, and he is liable for the consequences of their negligence and malfeasance committed in the course of their employment. But if, on the other hand, they were at work or directing the work on the building, as independent contractors or the servants and employees of independent contractors, over whom he could rightfully exercise no such control and direction, he is not so liable. The terms and manner of employment were, of course, matters of fact for the jury; it being for the court to declare the legal relation that existed between the parties, upon any given state of facts."

In Sacker v. Waddell, 98 Md. 44, the facts were these: Columbus Waddell loaned to Samuel Johnson a horse, wagon and a driver, his son Frederick Waddell, to assist Johnson in threshing wheat. A man named Gambrill, in charge of the work for Johnson, called to Frederick to come to him, and in driving to him in obedience to that order he ran over Claude Sacker and injured him. The question was whether Frederick was the servant of Johnson, or of Columbus Waddell, his father, at the time of the accident. In considering that question this Court, through Judge Boyd, said: "When the facts are such as to make it doubtful whether the relation between the servant and the original master continued for the particular service during which the accident happened, it is usually a question for the jury to determine."

The same question was before the court in the late case ofAmer. Sug. Ref. Co. v. Gilbert, 145 Md. 251, where the negligence of an electrician loaned to the defendant by a contractor injured a third person, and the rule stated in Sackerv. Waddell was again approved, and it was there held that because the evidence was not sufficiently "clear and convincing" to enable the court to say, as a matter of law, that the electrician was the servant of the defendant at the time of the injury that the question was one for a jury.

The latest expression of this Court on the question is found inSalowitch v. Kres, 147 Md. 23. The facts in that case were these: Louis Salowitch a dealer in auto parts and used automobiles, according to the plaintiff's testimony, loaned an automobile truck and a driver to his father who was engaged in the grocery business. Murphy, the driver, had no operator's license and had not been theretofore employed as a driver but as a mechanic or laborer. He had been engaged in delivering groceries for the defendant's father, and was returning to "Mr. Salowitch's place" when the plaintiff's truck was damaged by the negligent operation of Salowitch's truck by Murphy. In dealing with the responsibility of Louis Salowitch for Murphy's negligence, this Court, speaking through Judge Digges, said: "Whether or not the evidence, as disclosed by the record, is of such a character as will overcome the presumption, is a question of law for the court. * * * It is uncontradicted that the business of the appellant was dealing in auto parts and buying, repairing and selling second-hand motor trucks, and that it was no part of Murphy's general duties, as the servant of the appellant, to drive motor trucks; therefore, if the evidence of the plaintiff is believed, when the appellant loaned the truck and driver to his father, the servant was in the special service of another, engaged in that other's business and subject to his control and direction. Murphy thus temporarily became the servant of some one other than the appellant, and was such other's servant at the time of the accident. This being true, the defendant was not liable for injuries resulting from such accident."

There was no attempt in that case to modify in any way the principles established by the earlier cases to which we have referred, but the conclusion reached in it was based solely upon the finding that the plaintiff's uncontradicted evidence showed that at the time the accident occurred Murphy was under the control and direction of the defendant's father, and not under the control and direction of the defendant, and it cannot be considered as establishing the principle that the mere statement that a servant had been loaned by his master to another without any explanation of the circumstances of the loan creates a presumption of law that he is under the control and direction of the borrower. Prior to that case, where it appeared that an injury was caused by some instrumentality possessed by the person sought to be held and operated by his servant, there arose a presumption that at the time of the accident the servant was engaged within the scope of his employment in the master's business. The master could rebut that presumption by showing either that the servant had deviated from his employment, or that he was under the control, and direction of some person other than his master, to whom he had been loaned, and was not at the time of the accident under the control and direction of his general employer. That is, it was incumbent upon the defendant, in order to break down the presumption that he was responsible, arising from the fact that the negligent act was done by his servant in the operation of an instrumentality owned by him, to show affirmatively as a matter of fact that he had not at the time of the accident the right to control or direct the servant, and we do not think it can be conclusively said as a matter of law that he has met that burden by the bare statement that he had "loaned" the servant to another. He must go further and show that when he loaned him he surrendered to the borrower the right to control and direct him.

Applying these principles to the facts of this case, we cannot say as a matter of law that at the time of the accident the chauffeur in charge of the defendant's car was under the exclusive control and direction of Mrs. Brannan, or that he was not under the control and direction of the defendant; nor upon those facts can it be said as a matter of law that if the accident was caused by the negligent act of the defendant's chauffeur that he would not be liable therefor.

The mere use of the word "loan" or "borrow" does not in itself necessarily carry the implication that the master surrendered all control over the servant during the period for which he had been loaned. To relieve the master from liability for the act of a servant loaned to another, it is necessary that it should appear from direct testimony or as a necessary inference from the circumstances of the transaction that the servant was during the period of the loan under the control of the borrower and not under the control of the master.

If one should lend his automobile and chauffeur to drive a guest to a railroad station or to a friend for a sightseeing drive of a few hours it would be absurd to say that the borrower, if he had no right to control the movements of the chauffeur beyond suggesting the things he would like to see or the places he would prefer to go to, should be responsible for his actions. It certainly would be unreasonable to hold a guest responsible for the operation of an automobile of which he may have known nothing, by a chauffeur whom he had not employed and of whose qualifications he was ignorant, and whom he had not the power to direct or control. It certainly has not been supposed that, when one accepted the loan of an automobile under such conditions, that he became liable for the misconduct of the driver or the defects in the automobile which he used, and if such were the law there are few who would not hesitate to accept a courtesy accompanied by such risks. On the other hand where, as in the case of Salowitch v. Kres, the automobile and the chauffeur were loaned to the borrower to be used under his direction, in his business, and at his discretion, it would be equally unreasonable and illogical to hold the general employer liable for the acts of his servants in the performance of a duty which had been ordered and directed by the borrower, and which the general employer had not the power either to direct, control or prevent.

In this case the only testimony bearing upon this question is to the effect that Mr. Brawner loaned his car and chauffeur to Mrs. Brannan for a drive, and that without any direction at all from her and contrary to her wishes the chauffeur drove out the Frederick Road. It may be inferred from that general testimony that he did that without suggestion from any one, or that it was suggested by one of the Misses Winsett, or that it was directed by Mr. Brawner, but it certainly cannot be assumed as a matter of law that it proves that he did it at the direction of Mrs. Brannan, or that he was under her direction at all when her flat statement is that she did not know why he went out that way, and that she did not like that route. It could be inferred from that evidence that Mr. Brawner did surrender control and direction of the servant to Mrs. Brannan, and that she left the matter of a route to the chauffeur, and if that was so then she and not Brawner was responsible for his acts. But that is an inference of fact which should be passed on by a jury and not a conclusion of law which should be drawn by the court as from conceded or established facts admitting but one inference.

For these reasons there was in our opinion error in granting the defendant's first and second prayers, withdrawing the case from the jury, and it will be necessary therefore to reverse the judgment appealed from.

Judgment reversed with costs, and case remanded for a newtrial.