Mrs. Daisy A. Hooper of Washington, D.C., was injured as a result of a collision, which occurred on the afternoon of June 17th, 1923, on the Frederick Road, near Cooksville, Maryland, between an automobile in which she was a passenger, and an automobile owned by Harry O. Brawner, of Baltimore, Maryland, and operated by his chauffeur, in which Mrs. Eleanor Brannan, the mother of Mr. Brawner's deceased wife, and her two nieces, the Misses Winsett, were riding at the time.
Mrs. Hooper claimed that the accident was caused by the negligence of the appellee's chauffeur, and demanded that Mr. Brawner compensate her for her injuries, which he declined to do. She thereupon brought this suit in the Superior Court of Baltimore City, where in due course it was tried before the court and a jury. At the conclusion of the whole case the jury was peremptorily instructed to find for the defendant, and from the judgment entered on the verdict returned in accordance with that instruction this appeal was taken.
The record contains two exceptions. The first was not pressed in this court and we are therefore only called upon to consider the second, which deals with the court's action on the prayers.
The defendant offered two prayers, both of which were granted. The first, the usual demurrer prayer, presented the proposition that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. The evidence relating to the circumstances under which the accident occurred was conflicting, but as that prayer conceded the truth of all evidence tending to support the plaintiff's case, together with such inferences as might naturally and legitimately be drawn therefrom, and as there was some evidence in the case, which if true could have justified the inference that the accident was occasioned by the negligence of the appellee's chauffeur, the appellee did not rely upon that prayer in this court except in so far as it involved the proposition *Page 420 presented by his second prayer, and it becomes unnecessary to refer further to it, or the facts and circumstances surrounding the actual happening of the accident.
The real question in the case is raised by the defendant's second prayer. By it the jury were told "that as it appears from the uncontradicted evidence in this case that the automobile of the defendant was loaned by him on the occasion in question together with the driver thereof to Mrs. Brannan for her personal pleasure and use and that at the time of the accident in question said automobile was being operated solely for her pleasure and benefit, and that the defendant had no control or direction over said automobile, their verdict must be in favor of the defendant." It is based upon the testimony of Mrs. Eleanor Brannan, which is the only evidence found in the record upon the question of whether at the time the accident occurred the appellee was answerable for the negligence of the chauffeur operating his automobile. Mrs. Brannan, in reference to that question, testified that on the afternoon of June 17th, 1923, Mr. Brawner "loaned" her his "car and chauffeur," and that she and her two nieces, the Misses Winsett, went out for a ride; that they were living at the Geneva Apartments, and that Mr. Brawner lived at the Baltimore Country Club; that they borrowed the car at about three o'clock in the afternoon, and that Mr. Brawner did not come in the car nor did he accompany them; that they "just took a ride" out the Frederick Road; that she did not go out that road herself, that she did not know why he went out that road, that she did not like the class of people who go out that way on Sundays; that they went as far as Lisbon and were returning at the time of the accident; that she had frequently borrowed the car from Mr. Brawner, who is her son-in-law, the husband of her deceased daughter, and that whenever she wanted the car he loaned it to her; that the trip was for pleasure and that Mr. Brawner had no interest in it, and that Mr. Brawner employed and paid the chauffeur.
The appellant contends that that evidence is not sufficient *Page 421 to destroy the prima facie presumption of the defendant's liability which arose from the fact that at the time the accident occurred the chauffeur operating the appellee's car was in his general employment. The appellee on the other hand contends that it raises the conclusive presumption that, although the chauffeur was in his general employment, yet since he and the car which he operated had been loaned to Mrs. Brannan, they were not at the time of the accident under the control of the defendant, but under the control of Mrs. Brannan, and that Mr. Brawner is not therefore answerable for any default or negligence of his chauffeur during the continuance of that relationship. These conflicting contentions present the real issue in the case. The rule of respondeat superior arises from the relation of principal and subordinate, and rests upon the power of control and direction which the superior has over the subordinate, and the responsibility of a master for the act of his servant depending upon that rule does not arise when the servant is not actually or constructively under the direction and control of the master. Conversely that responsibility does exist whenever a third person is injured by some act or omission of the servant, within the scope of his employment, over whom the master had the power of control and direction, actual or constructive, at the time of such act or omission. While these principles are generally accepted, their application varies in different jurisdictions in accordance with varying interpretations placed on the terms "master and servant" and "within the scope of his employment."
In cases where the tortious act is done in the direct course of the employment and at the master's direction express or implied there is little difficulty. But when the act is done by the servant during the continuance of the general employment but at a time when he has been loaned to another, the application of the rule respondeat superior is more difficult and where the evidence affecting the relationship between the servant and the borrower is vague or doubtful it may become impossible to decide the question of the responsibility *Page 422 of the general employer as a matter of law, for in such cases the responsibility of the master, according to the weight of authority, depends upon whether he or the borrower has the power to control and direct the servant at the time of the tortious act. And that conclusion appears to be consistent with common sense and sound reason, for since the responsibility of the master depends upon his power to control and direct the acts of his servant, if he has surrendered that power to another, the reason for his responsibility ceases, and it would be unreasonable to hold him responsible for the acts of one whom he had not the power to control or direct, merely because the tort feasor was in his general employ. His responsibility does not grow so much out of the relation of master and servant as out of the power of direction and control which are usually incident to that relation.
While these principles are, we think, established, there has been some conflict in the manner of applying them to cases similar in character to this. The difficulty grows out of the anomalous character of the relationship between the master of a servant loaned to another, and the servant, and between the servant thus loaned and the borrower, for in such cases it may happen that the master who hires, pays and discharges the servant has not the power to control or direct him, while the person who has the power to control and direct him has not the power to hire or discharge him, and does not pay him.
The inherent difficulty of formulating a rational rule for applying the principle of respondeat superior to such facts as are involved in this case is illustrated by the case of Laugherv. Pointer, 5 Barb. C. 547, which was heard in the Court of King's Bench in 1826. In that case the owner of a carriage hired of a liveryman a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligence the property of a third person was damaged. The case was argued before all of the twelve judges, except the Lord Chief Baron, in Sergeant's Inn, on a rule to set aside a nonsuit. The twelve being unable to *Page 423 agree, the case was disposed of in the Court of King's Bench by four judges who divided evenly on the question, and the rule was discharged. The opinions of these judges exhausted both the reasoning and the then existing precedents and learning upon the subject.
Littledale, J., in support of the proposition that the master was not liable, said: "For the acts of a man's domestic servants there is no doubt but the law makes him responsible, and if this accident had been occasioned by a coachman who constituted a part of the defendant's own family, there would be no doubt of the defendant's liability; and the reason is, that he is hired by the master either personally or by those who are entrusted by the master with the hiring of servants, and he is therefore selected by the master to do the business required of him. This rule applies not only to domestic servants who may have the care of carriages, horses and other things in the employ of the family, but extends to other servants whom the master or owner selects and appoints to do any work or superintend any business, although such servants be not in the immediate employ or under the superintendence of the master." * * * "The cases referred to before Lord Ellenborough only shew, indeed, the owner of the horses to be liable, but it may be said the traveller is liable also. I think not. The coachman or postillion cannot be the servant of both. He is the servant of one or the other, but not the servant of one and the other; the law does not recognize a several liability in two principals who are unconnected. If they are jointly liable you may sue either, but you cannot have two separately liable; you must bring your action either against the principal, or the person who commits the injury."
And to the same end Abbott, C.J., said: "I am sensible of the difficulty of drawing any precise or definite line as to time or distance. But I must own that I cannot perceive any substantial difference between hiring a pair of horses to draw my carriage about London for a day, and hiring them to draw it for a stage on the road I am travelling, *Page 424 the driver being in both cases furnished by the owner of the horses in the usual way; nor can I feel any substantial difference between hiring the horses to draw my own carriage on these occasions, and hiring a carriage with them of their owner. If the hirer be answerable in the present case, I would ask on what principle can it be said that he shall not be answerable, if he hires for an hour or for a mile? He has the use and benefitpro tempore, not less in the one case than in the other. If the hirer is to be answerable when he hires the horses only, why should he not be answerable if he hires the carriage with them? He has the equal use and benefit of the horses in both cases, and has not the conduct or management of them more in the one case than in the other. If the temporary use and benefit of the horses will make the hirer answerable, and there be no reasonable distinction between hiring them with or without a carriage, must not the person who hires a hackney coach to take him for a mile, or other greater or less distance, or for an hour, or longer time, be answerable for the conduct of the coachman? Must not the person who hires a wherry on the Thames be answerable for the conduct of the waterman? I believe the common sense of all men would be shocked if any one would affirm the hirer to be answerable in either of these cases."