The opinion of the court was delivered by: GRIM
In this action plaintiffs seek to recover for injuries and death resulting from an automobile accident in Maryland. The case was tried to the court without a jury. A verdict by agreement was entered in favor of defendant Frank H. Schumann. After the trial, a verdict and judgment were entered in favor of defendant David D. Anderson and a verdict and judgment in favor of the plaintiffs were entered against defendants Charles Miller and John Crosby Boyd. Plaintiffs have moved for a new trial limited to defendant Anderson. Defendant Miller has moved (a) for a new trial and (b) to set aside the findings of fact, conclusions of law and judgment against him and to enter judgment in his favor.
There is ample competent evidence to support the findings of fact, conclusions of law and the verdicts and judgments. Certain questions, however, require discussion.
The accident happened in this manner: On August 30, 1956, defendant Anderson, as part of his employment by defendant Miller, drove Miller's truck on a regular daily run from Philadelphia to Grasonville, Maryland, on Chesapeake Bay, to buy and transport back a load of freshly-caught crabs to the employer's restaurant, called the Maryland Crab House, in Philadelphia.
At Grasonville, Anderson and Boyd both helped to load the fresh crabs on the truck and to put ice on them. When the truck was ready to start its return journey to Philadelphia, Anderson felt tired or ill and asked Boyd to drive for him. Although Boyd was only 17 years old, there is no evidence that he was not a competent driver. Along the way they stopped and Anderson picked up a puppy dog. As Boyd continued to drive toward Philadelphia, his attention was distracted by the restless antics of the puppy which Anderson was trying to keep on his lap. Because the driver was distracted the truck veered to the left side of the road, where it collided with an approaching automobile being operated by plaintiff Louis Ungolo. Ungolo and his daughter were injured. His wife and son were killed.
Defendant Miller contends that he is not liable on the ground that Boyd was not his employee and that Anderson had no authority to use anyone else as a driver.
Since the accident occurred in Maryland, the Maryland law of agency applies. Restatement, Conflict of Laws, 387.
The facts in this case fall within the rule laid down by the Maryland Court of Appeals in Hendler Creamery Co. v. Miller, 153 Md. 264, 138 A. 1, 3 (1927):
'We all think the first and second prayers of defendant were properly refused on another ground. The facts of this case bring it within the principle of the decision in Booth v. Mister, 7 Carr. & Payne, 66 (1835). There the servant of the master driving a cart on his master's business, intrusted the reins to a friend riding with him, who drove carelessly and caused an accident. The court said:
"As the defendant's servant was in the cart, I think that the reins being held by another man makes no difference. It was the same as if the servant had held them himself."
The Hendler case was cited with approval by the Maryland Court of Appeals as recently as 1949
and appears still to be the law.
Defendant's motion for a new trial must therefore be denied.
Plaintiff contends also that the principle of agency set forth in illustration 5 to § 79 of the Restatement, Agency 2d, applies:
'5. P employs A as a truck driver to carry a valuable load of perishable fruit to a distant town. En route, A becomes ill and unable to drive. Being unable to communicate with P, he employs B, a competent driver, to take his place for the trip. It may be found that A was authorized to employ B as P's servant.'