#### GUSTAV LOUIS *vs.*CHARLES D. JOHNSON.

*Injuries by Automobile*— Negligence *of Driver*— Liability *of Owner*— Scope *of Employment*— Instruction— *Assumption of Fact*— Special *Exception.*

In an action for injuries sustained in an automobile collision at the intersection of two streets, tbe driver of plaintiff’s car having testified that he sounded his horn and looked to the right and left as he started to cross the intersecting street, and that he did not see defendant’s car, *held*that the apparent assumption by plaintiff’s driver that his right of way, conferred by Code, art. 56, sec. 163, would not be disregarded by the driver of a car approaching from the left, did not warrant the withdrawal of the case from the jury on the ground of contributory negligence. p. 117

The ordinary presumption is that the person operating another’s automobile is the agent or employee of the owner for that purpose. p. 118

Evidence that the man driving an automobile at the time of the accident was employed by the owner as a laborer and not as a chauffeur, that he had been engaged by the owner’s wife for that particular Sunday to drive the car, but not apparently in pursuance of any separate employment, that he was at the time driving to get a sponge with which to wash the car, and that the owner said that he was waiting for the driver to “take him out,” *held*not to justify the direction of a verdict for the owner on the ground that the driver was not acting within the scope of an employment by the owner, this being a question for the jury. pp. 118,119

In an action against the owner of an automobile and its driver, on account of an injury received in a collision, a prayer offered by plaintiff which did not refer to the owner by name or by designation as owner of the car, and which predicated plaintiff’s right -to recover generally in his suit against the two defendants solely on the theory of the driver’s negligence, was erroneously granted, the issue as to the existence of a respon*116sible relation of agency; or employment between tlieni at tbe time, as to wbicb there was a conflict in tbe evidence, being thus in effect withdrawn from the jury. p. 119

In an action against the owner of an automobile and its driver for injuries received in a collision, wherein the owner denied his liability for the driver’s negligence and introduced evidence in support of such defense, that an instruction ignored that defense did not, as assuming the liability of the owner, involve an assumption of fact within Code, art. 5, sec. 9, requiring a special exception to an instruction defective by reason of any assumption of fact therein. p. 121

*Decided June 7th, 1924.*

Appeal from the Baltimore City Court (Stump, J.).

Action by Charles D. Johnson against Gustav Louis and Joseph W. Nowak. From a judgment for plaintiff, defendant Louis appeals.

Beversed.

The cause was argued before Pattisok, UrkeR, Ajoeiks, Opputt, Digges, and Bowd, JJ.

*Charles Jackson,*with whom'was *Arthur R. Padgett*on the brief, for the appellant.

*Bernard IJ. Conn*and (?. *Tyler Smith,*with whom was *Robert E. Kcunode*on the brief, for the appellee.

UbNER, J.,

delivered the opinion of the Court.

A judgment on the verdict of a jury, for the sum of $500, was recovered by the appellee against the appellant, and the driver of his automobile, for injuries sustained in its collision -with the appellee’s car at the intersection of Chase Street and Patterson Avenue in Baltimore. The only exception in the record was taken because of the action of the trial court in granting an instruction proposed by the plaintiff, and in refusing to direct a verdict in favor of the defendant, wlm owned the car which collided with the *117plaintiff’s, automobile. The other defendant has not joined in the appeal. It .appears from the evidence, that the collision occurred as the plaintiff’s ear was moving westwardly on Chase Street and across Patterson Avenue, and as the defendant’s car was proceeding along: that avenue and across Chase Street in a northerly direction. The plaintiff’s car', therefore, it is claimed, had the right of way. (Code, art. 56, sec. 163.) It had reached a point about halfway across the avenue when, according to the plaintiff’s proof, it was struck on its left side by the other oar as it came from, the south. It was testified that the appellant’s car was moving at a high rate of speed. The evidence as to the facts is conflicting, hut upon the theory that the plaintiff and the driver of his ear, by whose side he was seated, ought to have seen the approaching automobile of the appellant in time to avoid the collision, it is argued that they were guilty of such contributory negligence as to warrant an instruction denying recovery. The driver of the plaintiff’s car testified that he sounded his horn and looked to the right and left as he started to cross Patterson Avenue, and that, he did not seo the appellant’s car until the moment of the impact. In view of the precautions and other circumstances thus described, the apparent assumption by the plaintiff and the driver of his automobile that their right of way would not be disregarded by the driver of a car approaching from the left does not warrant a decision that the case should have been withdrawn from the jury on the ground of contributory negligence. *Brown*v. *Patterson,*141 Md. 293; *Kelly*v. *Huber Baking Co.,*145 Md. 321.

The appellant was not an occupant of his car a,t the time of the accident, and the main contention is that the driver of the car was not then acting within the scope of any agency or employment by virtue of which the appellant might be held legally responsible for the injuries proved. When the collision occurred his automobile was being driven to a place where the driver had left a, sponge which he intended to use in washing the car. There was testimony that the appellant *118in referring to tbe accident said be was waiting for tbe driver then in charge of it to> “take bim out,” and be “did not know what bad happened to him.” Tbe ordinary presumption would be that tbe person operating tbe appellant’s car was bis agent or employee for that purpose. *Stewart Taxi-Service Co.*v. *Roy,*127 Md. 70; *Myers*v. *Shipley,*140 Md. 380; *Whitelock*v. *Dennis,*139 Md. 566; *Dearholt Motor Sales*Co. v. *Merritt,*133 Md. 323; *Debelius*v. *Benson,*129 Md. 699; *Vonderhorst Brewing Co.*v. *Amrhine,*98 Md. 406. But a conclusion to tbe contrary is said to be legally required by tbe testimony for tbe defense to the effect that tbe-man who was driving tbe car at -the time of tbe accident was not employed by the appellant as a chauffeur, but only as a laborer, that be bad been engaged by tbe appellant’s wife for that day, which was a Sunday, to drive tbe automobile for her, and that be was not then acting under the appellant’s orders or for bis benefit. If tbe evidence proved without contradiction that tbe driver of tbe car was in fact not tbe agent or servant of tbe owner, a directed verdict for the latter would be justified upon tbe authority of the- decisions just noted. • But no such conclusive effect can properly be attributed to tbe evidence. Tbe driver of tbe car was tbe appellant’s employee. While described as a laborer in tbe testimony, be was qualified to serve as a chauffeur, and the actual service be rendered at times in that capacity, though limited to appointments made by the appellant’s wife, does not appear- to have been in pursuance of any separate employment, From tbe testimony as to the appellant’s statement already quoted it could be inferred that tbe car was intended for bis personal use on tbe day of tbe accident and that be was awaiting its arrival in accordance with bis previous instructions. Tbe use of tbe oar by tbe chauffeur in procuring tbe sponge with which it was to be cleaned, preparatory to its being used for a trip which the appellant may have bad in view for himself or bis wife, could not reasonably be held upon tbe evidence in this ease to have been so clearly beyond tbe Scope of tbe employment as to* require tbe withdrawal *119of the issue from the jury. It is inferable from the evidence that the employee was not driving the ear at the time and place of the accident for* any separate purpose of his own, but solely to the end that he might properly prepare it for the particular use for which his employer wished it to be available. In that respect the ease differs essentially from, *Symington*v. *Sipes,*121 Md. 313; *Dearholt Motor Sales Co.*v. *Merritt, supra, Debelius*v. *Benson, supra,*and other eases which counsel for the appellant have cited. In view1 of the evidence it was the plaintiff’s right to have the jury determine the issue as to whether the driver of the oar was acting within the scope of an employment by the owner when the accident occurred. There was consequently no error in the refusal of the court below to direct a verdict for the owner' on that issue.

By the plaintiff’s only prayer, which was granted, the jury were instructed that if the driver of the appellant’s ear, “approaching- from, the left,” failed to “give the right of way” to' the plaintiff’s automobile “approaching from, the right,” and if such failure to recognize the plaintiff’s right of way caused the collision with his ear, while it was being driven with due care, then the plaintiff was entitled to recover. This prayer ignored the question as to whether the driver of the appellant’s car wTas his agent or employee at the time of the accident. No reference is made by the prayer to the appellant by name, or by designation as owner of the ear which collided with the plaintiff’s automobile, and the right of the plaintiff to recover generally in his suit against the owner and the driver was predicated solely upon the theory of the driver’s negligence. The issue as to the existence of a responsible relationship between them at that time, in regard to which there was a conflict in the evidence, was in effect withdrawn by the plaintiff’s granted prayer from the jury’s consideration. A similar prayer was disapproved in *Buckey*v. *White,*137 Md. 131, because it allowed the jury, “to find a verdict against both defendants for a negligent act which they may have found w'as, due to the conduct- of only ore of them, and with which the other had *120no connection.” In that case tbe owner of tbe automobile, alleged to have been negligently driven, made no point as to bis liability, when sued jointly witb bis son wbo was using tbe oar for bis own purposes at tbe time of the collision wbicb occasioned tbe litigation. In tbe present case tbe responsibility of tbe owner as cordefendant was disputed in tbe testimony. While disapproving tbe plaintiff’s prayer1 in *Buckey*v. White, we beld tbat it should not be made tbe basis of a reversal, since no special objection to' it bad been filed in tbe lower court. Tbe theory of our conclusion was that tbe prayer assumed the liability of tbe co-defendant to whom it did not refer, and tbat this was an assumption of fact within tbe meaning of tbe following provision of article ■>, section 9 of tbe Code: “In no case shall the Court of Appeals decide any point or question wbicb does not plainly appear by the record to have been tried and decided by the court below; and no instruction actually given shall be deemed to be defective by reason of any assumption therein of any fact submitted to tbe jury, unless it appear from the record tbat an objection thereto for such defect, was taken at tbe trial; * *

Our ruling in *Buckey*v. *White*as to the necessity for a special exception to tbe instruction there beld objectionable was doubtless influenced by the fact that the responsibility of tbe owner for the act of tbe driver of bis car was not disputed at-the trial below or on tbe appeal. Tbe only objections urged against the prayer were tbat it was deficient in its definition of tbe due care required of tbe plaintiff, and was misleading in its statement witb respect, to tbe rules of tbe road wbicb it sought to apply. In overruling those contentions we were obliged to notice-, tbe defect, in tbe instruction which prevented us from approving it in principle. A reversal in that case because of an objection wbicb appeared to have been virtually waived was a result wbicb it was clearly desirable to obviate. But upon further consideration we are of tbe opinion tbat tbe Code provision we have quoted is not applicable to such a fault as the similar instructions' in tbat case and tbe pending one disclose. *121In the former decision we treated tbe assumption by the prayer of the existence of liability on the part of the unmen-tioaied «^defendant as being equivalent to an assumption of facts upon which alone liis liability could be established. The difficulty, however, in this case is that the prayer wholly excluded a defense by one of the partiesi which had been definitely interposed and which had support in the evidence. The facts upon which the appellant might have been charged with responsibility were not stated but were disregarded. In effect the jury was instructed that if the driver of the oar was negligent, the owner was jointly liable even though the driver was not then using the car in the owner’s service or interest. *Buckey*v. *White, supra.*Such a complete exclusion of the owner’s individual defense, which he was actively asserting in this case, should not deprive him of the benefit of his, objections to the prayer merely because it was not made the subject of a special exception. In the application of the provision referred to it has been held that to assume a fact “is to state as proved that which is to be proved,” and such an assumption is said to» be¡ “generally incidental and casual.” *Baltimore*v. *Poultney,*25 Md. 34; *Gunther*v. *Dranbauer,*86 Md. 10. The assumption by the prayer before us of the appellant’s liability is absolutely conclusive against his separate defense, and it has that effect because it ignores an important issue in the case. This was not such an assumption of facts as the statute has in view.

*Judgment reversed, with costs, and new trial awarded.*