Sacker v. Waddell

Boyd, J., delivered the opinion of the Court. The appellant sued the appellee for the loss of services of his son, who was about ten years of age, and for money expended by him for injuries sustained by the son by reason of the alleged negligence of the infant son of the appellee “employed and engaged in driving a wagon upon said defendant’s business.” Samuel Johnson assisted Waddell, the appellee, in threshing his wheat by furnishing him two men, a wagon and two horses, and he notified him when he would thresh" his own *49 wheat and requested a return of help. Waddell said that, he could only send him a single team and “Fred might go, and Johnson replied that it was all right.” At the appointed time the appellee sent his son Frederick, who was about fifteen years of age, with his horse and wagon to Johnson’s. Frederick drove to the wheat field and before reaching the thresher stopped in the field and got a load of wheat, which he carried from where it was stacked to the thresher, “without any instructions from Johnson or any one else. ” The length of the thresher, attachment and engine, was about sixty feet. A man named Gambrill was in charge of the work for Johnson, and Claude Sacker, the appellant’s son, who was visiting Joseph Johnson, a brother of Samuel, went of his own accord with Joseph and others who were to help Samuel. After Frederick had taken one or two loads to the thresher, he hauled another, which he had unloaded, and as he was about to return to the stacks Gambrill called him to come to him, and looking towards Gambrill, who was standing in the field some distance from the thresher, he drove past the thresher, attachment and engine and in doing so ran over Claude Sacker, who was standing by a pile of wood near the engine. Frederick did not see Claude until his horse was within a few feet of him, when he called to him to “look out” and tried to check the horse, but Claude in the confusion took a step backwards and the wagon ran over him. There was some conflict •between the witnesses as to the speed of the horse, but that is not very material as the case is presented to us. At the conclusion of the testimony the Court granted a prayer that there was no legally sufficient evidence to entitle the plaintiff to recover, and instructed the jury to find for the defendant. It is said that action of the Court was based on the theory that at the time of the accident the relation of master and servant did not exist between the appellee and his son, but the latter was then the servant of Samuel Johnson and under his control and direction. It is suggested in the brief for the appellee that independent of that question the prayer was properly granted, as there was no legally sufficient evidence upon *50 .which the jury could have found for the plaintiff, but without repeating the testimony, we are of the opinion that there was sufficient evidence of negligence to require the Court to submit it to the jury, if the appellee was responsible for the negligence of Frederick at the time of the injury, and hence we must consider that question. The precise point now presented has not heretofore been decided by this Court, although there have been many cases before üs and our predecessors involving the responsibility of masters to third persons by reason of the alleged negligence of their servants. In Deford v. State, use of Keyser, 30 Md. 179, the principle recognizing the distinction between cases in which the relation of master and servant existed and those in which there were independent contractors was fully adopted, .and. has since been followed. But the question here is whether ¡the facts proven so establish the relation of master and servant, between the appellee and his son in reference to the work at -which the latter was engaged, as to make the former responsible for the alleged negligence of the latter, which resulted ifi the injury of young Sacker. The case of Laugher v. Pointer, 5 B. & C. 547, left the law in doubt in England (the four judges being equally divided) as to whether the owner of a carriage drawn by horses owned by a job-man, who also supplied the coachman, was responsible for an injury sustained in a collision. The job-man did not pay the coachman for that day and .the defendant! did, but it was paid as a gratuity and mot in pursuance of any contract, the coachman having no employment -by the defendant, excepting such as might be inferred from his driving the carriage on that day. In Quarman v. Burnett, 6 Mee. & Wels. 499, which, as was stated in Deford’s case “is regarded as a leading case and the one in which the present approved doctrine was first definitely established,” the opinions of Abbott, C. J., and Littledale, J., in Laugher v. Pointer, were approved and the defendant was held not to be liable, although there were some facts which strengthened the case against the hirer. In the exhaustive notes to the case of Hardy v. Shedden, 37 L. R. A. 1, it is said, on page 71, *51 that the theory “which is now established by an overwhelming weight of authority, is that a servant sent to take charge of a chattel owned by his master, while it is placed at the disposal of another party for the performance of a given piece of work, is presumed to remain the servant of his general employer, and that some special circumstances apart from the mere fact of the hiring of the chattel must be put in evidence in order to overcome this presumption. The leading cases upon this doctrine are those known as the ‘carriage cases.’” Among other cases in which it has been held that the owner, and not the hirer of the team, when the owner also furnishes the driver, is liable for the injuries to third persons caused by the negligence of the drivers, are Joslin v. Grand Rapids Ice Co., 50 Mich. 516; Crockett v. Calvert, 8 Ind. 127; New York, etc., R. Co. v. Steinbrenner, 47 N. J. L. 161; Fenner v. Cripps, 109 Iowa, 455, and Huff v. Ford, 126 Mass. 24. The principle announced in those cases is recognized in P., W. & B. R. R. Co. v. Hogeland, 66 Md. 149, where it was held that the contributory negligence of the driver of a vehicle not owned or controlled by the passenger, will not constitute a bar to the right of the passenger to recover for injuries received by a collision of a train of the railroad company with the vehicle. Nor does the fact that the team and driver are furnished gratuitiously of itself relieve the owner of the negligence of the driver. Muse v. Stern, 82 Va. 33; Michael v. Stanton, 3 Hun. 462; Donovan v. Laing W. & D. Constr. Syndicate (1893), 1 Q. B. 629. • Although we are of the opinion that the law applicable to such cases is now well established to be as above stated, there 'may of course be circumstances which would relieve a master for injuries sustained by reason of the negligence of one who is in his general employ. The master may so hire or loan his servant to another for some special service, as that he will, as to that particular service, become the servant of such third person. If the master has parted with all power of control over the servant and permits the third person to make such use of him as he may deem proper, he may quoad that serv *52 ice, be the servant of the third person, and not of the general master. In this case the appellee said he could only send Johnson a single team and “Fred might go.” He accordingly sent his son with the horse and wagon to Johnson to help him in threshing his wheat, and as stated in the record “Frederick drove said horse and wagon over to Samuel Johnson’s wheat field where the wheat thresher was then at work, and before reaching the thresher Fred stopped in the field and carried a load of Johnson’s wheat from where it was stacked in the field to the thresher, without any instructions from Johnson or any one else.” The defendant also offered evidence tending to show that after his son “had carried a load or two he went to Johnson and said the work was too heavy for him and asked if he couldn’t do something else. In reply Johnson told him to try it a while longer anyway, when he would find him something else to do. Subsequently in the afternoon, while returning for another load, the accident happened.”. In rebuttal Samuel Johnson testified that he might or might not have had such conversation with Fred, but he could not recollect whether he had. The testimony in the record is rather meagre as reflecting on the question whether Fred was in fact the servant of his father, so as to make the latter responsible for the alleged negligence of the son, or whether Johnson, or his manager, so acted as to create the relation of master and servant between him and Fred in such way as to relieve the appellee. 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. It is said in 2 Thomp. on Negligence, p. 899, “Whether the person whose immediate negligence or misconduct caused the particular injury was acting at the time as the servant of the person sought to be charged frequently depends”upon such a variety of facts that it falls outside of any definite rule and for that reason becomes, under proper instructions, a question of fact for the jury.” See also Kimball v. Cushman, 103 Mass. 194; Crockett v. Calvert, 8 Ind. *53 127; Larkin v. Burlington, C. R. & N. Ry. Co., 85 Iowa, 499. In Deford's case, supra, the Court 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. * * * 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.” (Decided December 3rd, 1903.) So without citing other authorities it would seem to be clear that when there is any real question, under the testimony, as to whether the relation of master and servant did exist between the negligent servant and the one sought to be held as master, as to the particular service in which the injury was sustained, it should be submitted to the jury. In this case the record does not present such clear facts as justified the Court in determining, as a matter of law, whether such relation did exist, and that question should have been submitted to the jury. For error in granting the prayer referred to, the judgment must be reversed. Jtidgment reversed and nezv trial awarded, the appellee to pay the costs.