Indictment and information 56-Complaint, not pointing out particular offense intended to be charged, is insufficient. In view of P. S. 5140, 5141, 5204, 5208, 5209, 5215, specifying different crimes based on selling intoxicants, a complaint that accused did "sell intoxicating liquor without authority" was insufficient to inform accused of the particular offense charged, as required by Const. c. 1, art. 10. Exceptions from Hartford Municipal Court; Frederick C. Southgate, Judge. Ruth Elliott was convicted of a violation of the liquor law, and she brings exceptions. Reversed, and defendant discharged. The complaint alleged that respondent did "sell intoxicating liquor without authority." Respondent moved to arrest a judgment of conviction on the ground that the complaint did not inform her of the offense of which she was charged. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Ernest E. Moore, State's Atty., of Ludlow, for the State. 283 2. Gifts 49(2)-Evidence held not to show undue influence by niece occupying confidential relations. In a suit by an administrator to set aside gifts by his intestate to her niece with whom she had been living for several years before her death, evidence held not to show that the gifts were void because of undue influence exercised by the niece, even granting that the relations between the parties were of a confidential nature so as to throw the burden of proof on the donee. Appeal from Circuit Court No. 2 of Baltimore City; Walter I. Dawkins, Judge. "To be officially reported." Suit by Joseph T. Barron, administrator of Agnes Bridget Owens, deceased, against Catherine Reardon, to set aside alleged gifts made by plaintiff's intestate. Decree for defendant, and complainant appeals. Affirmed. Argued before BOYD, C. J., and THOMAS, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Read A. McCaffrey, of Baltimore, for appellant. William E. Hoffman, of Baltimore, for appellee. STOCKBRIDGE, J. This is the case of a bill filed by the administrator of Bridget Agnes Owens to have declared void and set Hugh Moore, of White River Junction, for aside certain alleged gifts made in her liferespondent. POWERS, J. Although this complaint specifies the person to whom, the time when, and the place where the intoxicating liquor was said to have been furnished, it is no better, as a criminal pleading, than the one in State v. Villa, 92 Vt. 122, 102 Atl. 935, and for the reasons therein stated is fatally defective, and cannot support a conviction. The judgment overruling the motion in arrest is reversed, the motion is sustained, and the respondent is discharged. (137 Md. 308) (No. 22.) BARRON v. REARDON. (Court of Appeals of Maryland. Jan. 11, 1921. Rehearing Denied April 4, 1921.) time of deposits in savings banks, to Catherine Reardon. The application is made for the benefit of certain nephews and nieces of Mrs. Owens, of whom there were seventeen, Mrs. Reardon being one of that number. The bill of complaint and the evidence bear both upon the mental capacity of the donor at the time tended to show that the alleged gifts were when the gifts were made, and also is inprocured by Mrs. Reardon from her aunt as the result of undue influence exercised over her. At the hearing in this court the counsel for the appellant practically abandoned all question as to the mental capacity of the donor, but rested his contention upon the question of undue influence, together with the propoIsition that the relations between Mrs. Owens and Mrs. Reardon were such as to make the doctrine of confidential relations apply, and to place the burden of proof upon the defend 1. Gifts 38-"Undue influence" must be ant to show that the gifts of the money were the free, voluntary acts of Mrs. Owens, unintantamount to force or fear. The "undue influence" which is objection-fluenced by those elements which would conable in the eye of the law and justifies setting stitute undue influence. aside a gift must be tantamount to force or fear; the influence of affection, attachment, or gratitude not being sufficient to avoid the gift. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Undue Influence.] It would serve no special purpose to recite in detail, or even fully abstract, the evidence of the various witnesses called upon by one side or the other, to support contentions of the opposing party, and for the present purposes it will be sufficient to briefly summa rize the leading features of the evidence, as ( Mrs. Gavin, though as matter of fact she did far as the same can be gathered from the large mass of contradictory testimony which was offered. The record is rather voluminous, and much | of that which was given in the way of testimony was clearly inadmissible and should have been excluded by the trial court. No motion was made at the conclusion of the testimony for the rejection of this incompetent evidence, and therefore it has been necessary for the court to carefullly examine all of the evidence adduced, and from such examina- | tion to form, as best it can, its conclusion as to the real facts of the case. At the time of her death Mrs. Owens was about 85 years of age, or a little over. Her property consisted at the time of her husband's death, some eight years prior to her own demise in 1919, of a ground rent and deposits of various sums in a number of the savings banks of Baltimore City. The ground rent mentioned was sold by Mrs. Owens, so that at the time of her death the estate consisted solely, so far as she left any estate, of these various bank deposits. The conveyance of the ground rent, and her entire capacity to make it at the times he did, is nowhere called in question. With regard to the amount deposited in the Metropolitan Savings Bank there does not seem to be any serious question. Between 1914 and the time of her death, this account had been decreased by withdrawals, so that the balance remaining on January 24, 1919, was less than $200, and this account was finally closed by the payment by the bank, upon an order for $200, of the sum of $198.21, which was paid to the undertaker, and did not serve to discharge in full his bill. After the death of Mrs. Owens' husband, for some three or four years she appears to have lived in different places, but in 1914, she went to live with her niece Mrs. Reardon, the defendant in this case. Subsequent to taking up this domicile Mrs. Owens and Mrs. Reardon visited various of the savings banks, and there had the accounts theretofore standing in the name of Bridget Agnes Owens, changed, and placed in their joint names and the survivor of them. This appears to have been done at the instance of Mrs. Owens. The withdrawals made from the various banks by Mrs. Owens range in amount from $15 to $100, and were wholly or partially used in the payment of her living expenses. We then come to the point where the withdrawals were upon orders given upon one or another of these banks for the payment of the amounts named in such orders to Mrs. Reardon, and these orders were witnessed by a Mary A. Gavin. It seems from the testimony that what took place was that a considerable number of orders were signed at or not see Mrs. Owens append her signature to them. The amount of the order, and the payee, and the date appear to have been left blank, and subsequently filled in by Mrs. Reardon, and presented at the banks on which drawn, together with the book. By these several withdrawals the amounts of Mrs. Owens' balances had become reduced to between $4,000 and $5,000, when there was presented to the several banks what is generally termed a "transfer order," under which the amounts then remaining on deposit were transferred to new accounts, made out in Mrs. Reardon's name. It is impossible to deduce from the testimony with any degree of certainty the exact point of time when these transfer orders were actually signed, but it is reasonably certain that they were at a time when Mrs. Owens was in full command of her faculties and perfectly competent to have given them. It was as the result of these several orders that the entire moneys theretofore in Mrs. Owens' name are to-day claimed as a gift by Mrs. Reardon, and to set aside which this proceeding was instituted. With regard to the physical and mental condition of Mrs. Owens there arises the greatest conflict, varying all the way from an opinion expressed by a 15 year old colored girl, employed as a domestic for a portion of each day in Mrs. Reardon's household, who says that for a year or more Mrs. Owens was in a stupor, incapable of executing a valid deed or contract, to that of the physician who attended Mrs. Owens during her last illness, and who testified to her mental alertness up to within three days of her death, which occurred on the 3d February, 1919. A large number of the witnesses' testimony bears intrinsic evidence of being more or less influenced, unconsciously it may be, by their relationship to, or intimacy with, certain of the nephews and nieces, and it seems probable that this is what led the judge of the circuit court No. 2 of Baltimore City in his opinion to base his conclusion largely upon the testimony of the doctor, who was a thoroughly disinterested witness. Apparently Mrs. Anna Price, who had known Mrs. Owens for something like 35 years, occupied a not dissimilar position. Some time before she was confined to her bed, Mrs. Owens had had a fall, the direct result of which was to produce a lameness in one of her knees, and lack of confidence in moving about. For something like 18 months before her demise she had been practically confined to her room, and for the last 6 months to her bed. Some of the witnesses called on behalf of the plaintiff either used the term "paralysis," or described a condition bordering thereon. That there was any paralysis was positively denied by Dr. Jones, (113 A.) The will which Mrs. Owens had executed was subsequently destroyed by her, because of articles which she read in the newspapers with regard to contests over wills, and she desired as far as possible to avoid her estate being involved in any such litigation, and she felt that the surest way to do this was by an act done by her in her lifetime, so that there should be nothing left to litigate some of the witnesses, as "stupor," "coma," | and of these few, the visits paid were at "unconsciousness," may have been either an intervals of from two weeks to a much longer indisposition to talk to the particular indi- period, and their duration at any one call vidual, or a more or less manifest failure of was very brief. mental power, is somewhat difficult to decide. There can be no doubt that, from the time when she was confined to her room, Mrs. Reardon did look after the business interests of her aunt, which business interests were practically limited to drawing the money from bank for her support. On the other hand, the alleged refusal of Mrs. Reardon to take callers, in some cases some of the nephews and nieces, upstairs to see Mrs. Owens, may have been the result, either of a desire to exercise an influence over the aunt, or equally well because in her physical condition she might at any particular time prefer not to have visitors. The conduct of Mrs. Reardon is as easily understood upon the one ground as upon the other. It seems to be beyond question from the testimony, not of one but of a number of witnesses, that Mrs. Reardon was exceptionally cordial in receiving callers who came to her house to inquire with regard to the aunt, including a number of the nephews and nieces now directly interested, and that she carried this to an extent not to have been anticipated, if as matter of fact she was endeavoring to exercise any undue or improper influence over her aunt, for her own personal benefit. It is an over. [2] Bearing in mind the principles of the law applicable to the validity of gifts inter vivos, and granting that the relations established were those of a confidential nature such as to throw the burden of proof upon the donee, this court finds that the burden has been fully met, and that the decree appealed from should be affirmed. Decree affirmed, with costs. (138 Md. 1) GOLDSMITH v. CHESEBROUGH. (No. 65.) (Court of Appeals of Maryland. Feb. 11, 1921. Rehearing Denied March 3, 1921.) 1. Master and servant 302 (2)—Liable for third person's injury by servant authorized to use instrumentality. [1] The influence which is objectionable in the eye of the law is that influence which is fully discussed in Todd v. Grove, 33 Md. The mere fact that the instrumentality 202, and in Williams v. Williams, 63 Md. which occasioned the injury did not belong to 371, and in numerous other cases. the master will not preclude recovery, if the influence which must be tantamount to force other circumstances require the inference that or fear, as this court has often said. While, the tort complained of was within the scope of the servant's employment; the question being on the other hand, there is the influence whether the use of the instrumentality was or arising from an entirely different source, was not authorized, expressly or impliedly, by namely, the influence of affection, attach- the master. ment, or gratitude, which does not make a gift vold, and the more especially when it is but the execution of a long-cherished purpose. See Eakle v. Reynolds, 54 Md. 312; Simpson v. League, 110 Md. 286, 72 Atl. 1109; Reed v. Reed, 101 Md. 138, 60 Atl. 621; Chase v. Grey, 134 Md. 625, 107 Atl. 537. 2. Master and servant 332(2)-Evidence of employé's authority to use own automobile held insufficient to go to jury. operation of an automobile driven by defendant's In action for injuries caused by negligent collector, who owned the automobile, evidence held insufficient for submission to the jury of the question whether the defendant, either expressly or impliedly, authorized the driver to use the automobile in the discharge of his duties. Appeal from Superior Court of Baltimore City; Henry Duffy, Judge. There is one phase of this case to which attention has not yet been directed. It is established without serious contradiction that for the last 4 or 5 years of her life Mrs. Owens had made her home with Mrs. Reardon, who had provided for her and looked after her wants in many ways; that prior to her last illness Mrs. Owens had executed a will, by the terms of which, except for a few specific legacies, amounting all told to less than $1,000, she had given her property to Mrs. Reardon; that few of her seventeen nieces and nephews ever Argued before BOYD, C. J., and THOMAS, called upon the old lady, or manifested any PATTISON, STOCKBRIDGE, ADKINS, and special concern with regard to her welfare, | OFFUTT, JJ. Suit by Harry P. Chesebrough against Joseph Goldsmith. Judgment for plaintiff, and defendant appeals. Reversed without a new trial. Clifton S. Brown, of Baltimore (Emanuel, their car fare was paid by the defendant. E. Ottenheimer, of Baltimore, on the brief), After reaching the localities in which they for appellant. worked, they practically went from door to L. Wethered Barroll and William L. Mar- door, or at least the calls made by them were bury, both of Baltimore, for appellee. PATTISON, J. The appellee, Harry P. Chesebrough, brought suit in this case to recover for personal injuries sustained by him caused by the alleged negligence of one Robert E. Talbott, an alleged servant or employee of the defendant, in the operation of an automobile at or near the corner of Baltimore and Schroeder streets, in the city of Baltimore. The declaration alleges that on or about the 10th day of March, 1920, while the plaintiff was crossing from the pavement on the north side to the pavement on the south side of Baltimore street, at the time exercising due care and caution in so doing, the defendant, by his agent or servant in charge of an auto mobile, who was operating the same "in a reckless, fast, and negligent manner," caused said automobile "to run against and upon the plaintiff," thereby causing him to suffer serious and permanent injury. The case was tried by a jury in the superior court of Baltimore City, and resulted in a verdict and judgment for the plaintiff, from which judgment this appeal is taken. At the conclusion of all the evidence, the defendant asked for an instruction directing a verdict for him because of a want of evidence legally sufficient to entitle the plaintiff to recover, but this prayer was refused. The defendant contends that if the said automobile, owned by Talbott and his wife, and not by the defendant, was used by Talbott in the performance of the duties required of him under the terms of his employment by the defendant, it use was not only unnecessary, but was without authority from him (the defendant), either expressed or implied, and that such use was without the knowledge and the consent of the defendant. The evidence discloses that, at the time of the accident resulting in the injury complained of, the defendant was engaged in the "house-furnishing and clothing business," at the corner of Baltimore and Gilmore streets, in the city of Baltimore, and that on the 3d day of March, 1920, and prior thereto, he had in his employ some ten or more solicitors and collectors, each confined to a particular locality of the city. These men each morning met at the defendant's place of business, and from there went in the street cars to the respective territories worked by them, and at the close of the day they returned by the cars to the defendant's store, and from there went to their respective homes. at places in close proximity to each other. As described by the defendant, "the calls were laid close together," and in some of them he said the collector, "if he had just to go over the territory, he, by walking, could go over it four times in one day." It was on the 3d day of March, 1920, that Talbott entered the employment of the defendant as collector and solicitor to do the work we have described in the territory assigned to him. At that time he was living on Walnut and Second avenue, near Rognel Heights, in the northwest section of the city, and was at the time, with his wife, the owner of said car, which he used in riding to and from his work in the city. The terms of Talbott's employment must be ascertained from his and the defendant's testimony, and it is to the legal sufficiency of this testimony, as tending to show that he was authorized by the defendant to use the automobile, that said instruction asked for was directed. It will be first stated that the evidence conclusively shows without contradiction that the use of the car was unnecessary in going from defendant's store to the territory worked by Talbott, or in working the territory after he had reached it. In fact the record discloses that he, like others, was paid so much per day for car fare in going to and in returning from his territory; and the evidence is undisputed that while at work the automobile was of no advantage to him, because of the numerous stops he was required to make at places not far removed from each other. Talbott received $12 per week and was compensated for each sale made by him. The automobile, he stated, was used by him in driving in and out from Rognel Heights with his father-in-law, who also worked in the city, and at times in going to and from his territory, and on occasions in collecting and soliciting, although he said he did not use the machine at all for the first two weeks after the commencement of his employment; but he subsequently modified this statement by saying "not regularly." When asked by counsel for plaintiff, "What understanding did you have about the use of this machine?" he replied: "I told him (Goldsmith) I had a machine, and he * * said, 'Well, I would not use it for quite a while for a couple of weeks or so,' for reasons that he had of his own, in regards to a solicitor that I was then going with running over the routes. And I mentioned the fact to him that I could use it and get around, and, In going from the defendant's store to the while he did not agree with me or did not disterritories assigned to them, and in return-approve, why, I went to work and used the ma (113 A.) "Didn't you tell him you had a machine, and [ little, and Talbott said, "I have got $1,000, he said, 'I think that will help and will be glad and I have got a Ford car, to have you use it'? A. I would not say positive whether he did or not. "Q. Well, what did he say? A. I told him that I had a machine, and I said in case any time his trucks break down, or anything like that, why we could make delivery if it was quick and had to go out, which we did. "Q. And you told him that you could use the machine in making collections, didn't you? A. Yes, sir. "Q. He never made any objection to you ing the machine for that purpose, did he? Never made any objection, and he never proved." us A. ap He was shown a paper purporting to contain a statement of what he had said to Mr. Barroll, one of the counsel for the plaintiff, which Mr. Barroll had reduced to writing, and which Talbott had signed. He was asked if it was his signature and he answered that it was. He was then asked if Mr. Goldsmith did not say to him when he told him that he had the machine, "I think that will help, and I will be glad to have you use it." His reply was: "I would not say that it was the exact words, because I gave it to Mr. Barroll offhand, and Mr. Barroll wanted me to come over to his office right after I was up to the traffic court. "Q. Yes; he asked you to make a statement of what you knew about the case? A. Yes. "Q. Then you do not remember the exact language? A. The exact words I could not say. "Q. Well, was that not substantially what he said? A. About that." The defendant, Goldsmith, testified that the duties of Talbott under his employment were those of collector and solicitor; that he was assigned to a territory in which to work and where he solicited orders on March 10th, but at the time of the accident, which occurred late in the afternoon of that day, after the hour when the solicitors and collectors had ordinarily returned from their work to the defendant's place of business, he was at a place far removed from the territory to which he was assigned. I can go around in;" and defendant said, "Well, Mr. Talbott, there would be no use much of that, because I would not want you to use any Ford for two or three weeks anyhow, and I do not see where you could use it, because we have a delivery truck to deliver." Talbott, he said, came to the store at times in his machine, but defendant did not know that he used it when engaged in collecting and soliciting, and did not know he used it on the day of the accident for such purposes, but if he did so use it on that day it must have been the first time; that he never learned of the accident until July 1st, after Talbott had left his employ. Talbott never reported the accident to him, and not until July 1st did he have any knowledge of it. In Wilson v. Penna. R. R. Co., 63 N. J. Law, 385, 43 Atl. 894, it is stated in the syllabus, which correctly states the finding of the court, that "The plaintiff was struck by a wagon belonging to the Adams Express Company, driven by a person employed by the Pennsylvania Railroad Company to carry United States mail, which was, in fact, in the wagon, but which previously had been carried on foot or in a pushcart. Held, that as there was no proof that the defendant had authorized its servant to use a wagon, the plaintiff should have been nonsuited." In Stretton v. City of Toronto, 13 Ont. Rep. (1887) 139, it appeared that plaintiff was knocked down and severely injured by the negligent driving by one Bessey of a horse and buggy. This horse and buggy were not the defendants', but were the private property of Mr. Coatsworth, the city commissioner. Bessey was a servant of the defendant. A hydrant had burst, and Foley, a servant of the defendants, who was attending to it, sent Bessey to his (Foley's) house for a wrench. Bessey, on his way there, without the knowledge or authority of Foley, and without the knowledge or authority of Coatsworth, took the horse and buggy, which he The defendant testified that Talbott, like found standing in front of Coatsworth's ofall other collectors and solicitors, was allow-fice, for the purpose of more speedily getting ed car fare "to the route and back from the the wrench, and in driving for it ran down route"; that he was the only one of all the plaintiff. The court in that case said: collectors that used a car, if he used one, in collecting or soliciting; that when Talbott applied to him for work he said that he had been employed by Bartlett & Haywards Company, and the defendant expressed some apprehension about his being able to pay him the wages he had been receiving from them, and said "he could not pay him wartime wages." Talbott then said, "Well, I have a little money," and defendant asked him what he could work for, and he said, "about $12 or $13 per week." The defendant expressed surprise that he, with a wife, could live on so for the negligent driving by Bessey, their serv "The defendants were sought to be charged ant, of a horse and buggy, causing injury to the plaintiff, and in order to establish this it was necessary for the plaintiff to show that the driving of the horse and buggy was in the course of Bessey's employment as the servant of the defendants. This he failed to do. Bessey, it is true, was the servant of the defendants, and in going for the wrench was acting in the course of his employment; but he was not acting in the course of his employment in going for it with a horse and buggy which he had wrongfully possessed himself of without |