Bowser v. Resh

SALMON, Judge. This case has its origin in an accident that occurred on a two-lane highway in Garrett County, Maryland, on November 11, 1999, at approximately 5:50 p.m. One of the vehicles involved in the accident was a 1994 Dodge van driven by Francis Resh (“Mr. Resh”). At the time of the accident, the front-seat passenger in the van was Howard Dillsworth; the backseat passenger was Mr. Resh’s wife, Josephine Resh, who is also the daughter of Mr. Dillsworth.

The accident happened when the van driven by Mr. Resh struck a skidloader (also referred to in the testimony as a “Bobcat”) operated by Carlton Bowser. Mr. Resh was only slightly injured in the accident, but his wife, Mr. Dillsworth, and Mr. Bowser all suffered more serious injuries. Approximately four months after the accident, Mr. Dills-worth died. Thereafter, Josephine Resh was appointed as the personal representative of his estate.

On February 14, 2002, Mrs. Resh, individually, filed a negligence suit against Mr. Bowser in the Circuit Court for Garrett County. She alleged that the November 11, 1999, accident was the exclusive fault of Mr. Bowser. Included in the complaint was a count alleging loss of consortium, which was brought by Mr. and Mrs. Resh jointly. Additionally, Mrs. Resh, as personal representative of her father’s estate, ⁶¹⁹ brought a survivorship action and, in her individual capacity, a wrongful death claim against Mr. Bowser. 1 Mr. Bowser filed an answer to the complaint, along with a counterclaim.

He named as counter-defendants Mr. and Mrs. Resh, individually, and Mrs. Resh, in her capacity as personal representative of the estate of Mr. Dillsworth. In the counter claim, Mr. Bowser asserted that Mr. Resh’s negligence caused the accident, and his negligence was imputable to both Mr. Dillsworth and Mrs. Resh, because at the time of the accident Mr. Resh was acting as the agent for both. Counter-claimant also contended that Josephine Resh was liable for her husband’s negligence due to the fact that she was the owner of the van. In addition to seeking damages for his personal injury, Mr. Bowser asked for contribution and/or indemnity for all claims made by the plaintiffs in the original action.

Mr. Bowser later settled with the Reshes’ insurer his claim for personal injury arising out of the accident. In connection with that settlement, Mr. Bowser signed, on September 29, 2003, a release. Subsequently, a stipulation of dismissal was filed as to Mr. Bowser’s bodily injury claim. On January 14, 2005, Mr. Bowser filed an amended counterclaim for indemnity and/or contribution.

In addition to the allegations set forth in the original counterclaim, Mr. Bowser alleged in the amended counterclaim that Mrs. Resh negligently entrusted the operation of her vehicle to her husband and that her negligence in doing so, combined with the negligence of Mr. Resh, caused or contributed to the accident. He also alleged that Mrs. Resh was the agent and/or “employee” of Mr. Dillsworth at the time of the accident and that her own negligence in entrusting the Dodge van to her husband was imputable to Mr. Dillsworth. On May 27, 2005, which was almost a year and one-half after the release was signed, Mr. and Mrs. Resh filed what they called a “Motion to Dismiss Carlton Bowser’s Counter ⁶²⁰ Claim for Indemnification and/or Contribution.” Despite the title of the motion, it was, in legal effect, a motion for summary judgment as to all claims made in the counterclaim because it relied upon a document not attached to Mr. Bowser’s counterclaim, i.e., the release signed on September 29, 2003. The release was relied upon by the Reshes, despite the fact that neither of them had specifically pleaded that defense as they were required to do pursuant to Maryland Rule 2-323(g)(12).

On June 20, 2005, the trial judge granted the Reshes’ motion to dismiss the counterclaim for indemnification and/or contribution. Three days after the counterclaim was dismissed, on June 23, 2005, a jury trial commenced. The parties stipulated at trial that the jury would be required only to answer questions concerning liability. The jurors were asked to answer six questions on a special verdict sheet.

The questions propounded, and the jurors’ answers to those questions, were as follows: 1. Do you find that Carlton E. Bowser, Jr., was negligent and that his negligence was a proximate cause of the accident on November 11,1999? / Yes No 2. Do you find that Francis Resh was negligent and that his negligence was a cause of the accident on November 11, 1999? / Yes No 3. Do you find that Francis Resh was the agent of Josephine I. Resh? _Yes / No 4.

Do you find that Francis Resh was the agent or employee of Elmer Dillsworth? _Yes y No 5. Do you find Josephine I. Resh was the agent of Elmer Dillsworth? Yes y No ⁶²¹ 6. Do you find that Josephine I. Resh was the sole owner and an occupant of the Resh vehicle such that she had the right to control the operation of her vehicle even though she was not actually driving it?

Yes / No Mr. Bowser filed a motion for judgment notwithstanding the verdict and/or a new trial, which was denied. He then filed this appeal 2 in which he raises seven questions, viz.: 1. Did the trial court err when it denied Bowser’s motion for partial judgment concerning the issues of agency and imputed negligence? 2. Did the lower court err when it denied Bowser’s motion for partial summary judgment concerning the issues of agency and imputed negligence? 3.

Did the trial judge err when he refused to instruct the jury concerning the issue of negligent entrustment? 4. Did the trial court err when it refused to instruct the jury concerning the defense of assumption of risk? 5. Did the lower court err when it dismissed Bowser’s counterclaim for indemnification and/or contribution? 6. Did the trial court err when it referred to injuries while instructing the jury and thereby invit[e] the jury to consider injuries contrary to the court’s prior in limine ruling that the jury was not to consider injuries? 7.

Did the trial court err when it denied Bowser’s motion for judgment notwithstanding the verdict and/or for new trial? ⁶²² I. FACTS DEVELOPED AT TRIAL A. The Happening of the Accident The subject accident occurred on Underwood Road near Mr. Bowser’s residence in Garrett County. At the time of the accident, Mr. Resh was driving with his low-beam headlights on, and it was either dark (Mr. Bowser’s testimony) or “getting dark” (Mr. Resh’s testimony). Underwood Road is a two-lane highway, and the Reshes’ vehicle was proceeding southbound in the right lane of that road. Mr. Resh, who was sixty years old at the time of the accident, was very familiar with Underwood Road, having driven it regularly for many years.

About 300 feet north of the scene of the accident, the 1994 van driven by Mr. Resh passed Mr. Bowser’s farmhouse. Meanwhile, on the evening of the accident, Mr. Bowser, aged sixty-nine, had used his skidloader to carry a load of firewood to his house. After dumping the firewood, Mr. Bowser drove to the end of his driveway, looked north on Underwood Road, saw no oncoming vehicles, and proceeded to turn right onto the roadway. He then proceeded southbound on Underwood Road at a speed of no greater than six miles per hour.

He intended to travel southbound for about 300 feet, then to turn right and park the skidloader in his barn. Mr. Bowser ordinarily did not drive the skidloader on public roads at night, and the vehicle was not licensed to be operated on public roadways. There were no taillights or reflectors on the skidloader, nor was the vehicle equipped with the required “Slow Moving Vehicle” emblem on the rear. The vehicle was, however, equipped with two white halogen lights on the front and one on the rear.

The three lights were activated at all times here relevant. A short distance past Mr. Bowser’s house, Mr. Resh saw the skidloader in the roadway, hit his brakes, and swerved, but the van, nevertheless, collided with the much slower moving vehicle. Immediately before impact, but after Mr. Resh had ⁶²³ seen the skidloader, Mrs. Resh hollered from the backseat, “Watch out.” B. Testimony Regarding Ownership of the 1994 Van At the time of the accident, the Reshes had been married for approximately thirty-seven years. The 1994 van was titled in Mrs. Resh’s name alone.

In regard to the ownership of the vehicle, Mrs. Resh’s testimony was as follows: Q [ATTORNEY FOR THE RESHES]: The van that was being — that was owned by you and your husband, leading up to November 11, 1999, do you know whose name that van was titled in? A: Yes, my name, Josephine Resh. Q: Okay. Do you know why that van was placed in your name?

A: Well, yes, because I went and got it, and it was my, you know, our vehicle, but I went and got it in my name. Q: Okay. Was there any particular reason why your husband’s name wasn’t placed on that vehicle? A: No. Because everything is 50/50.

We just — it’s his and it’s mine. Q: Okay. So how did you consider that van in terms of ownership, from your perspective? A: Well, it was in my name, but I never thought about that; didn’t amount to — the name didn’t amount to nothing, because we share everything, always did that, 50/50.

It’s not mine; it’s not his. Q: Did you ever attempt to control or attempt to assert control in regard to the usage of that van? A: No, I never, never did. (Defense counsel did not cross-examine Mrs. Resh on this or any other subject.) Mr. Resh testified: Q [ATTORNEY FOR THE RESHES]: Let me ask you a few questions about the vehicle that you were driving.

What kind of vehicle was it? ⁶²⁴ A: It was a ’94 Dodge Van, multi-van. Q: Whose vehicle was that? A: Well, when we buy a car we — everything’s 50/50. So, I don’t know if I had her name on it or if she had my name on it for sure, but the insurance company — both of our names is on the insurance.

Q: Well, I’m not asking about that. I’m asking about, um, if it would be shown, through evidence, that the vehicle was titled in your wife’s name? A: It could have. Yes.

Q: Okay. Would — at the time of the accident, did you know that to be the case? A: No, I didn’t. Q: Okay.

And how was that vehicle used in terms of, you know, how it may have been shared between you and your wife? A: When she wanted it, she drove it, and when I wanted it, I drove it. Q: When you wanted it, would you have to ask her for permission to use it? A: No. Q: When you were driving together, who would drive?

A: I drove most of the time, and sometimes she would drive. C. Evidence Concerning Agency On November 11, 1999, Mr. Resh, accompanied by his wife, drove Mr. Dillsworth to a hospital in Cumberland, where Mr. Dillsworth underwent out-patient surgery for colon cancer. The threesome then left the hospital and headed toward Accident, Maryland, where the Reshes lived. On the way home, they stopped at a fast food restaurant in LaVale, Maryland, to get some food.

Mr. Resh then drove to his home so that he could pick up some insulin that he needed for his diabetes and also so that he could pick up a blanket and pillow for his wife. ⁶²⁵ After about a fifteen-minute layover, the Reshes and Mr. Dillsworth then got back in the van with the intent of driving to Mr. Dillsworth’s home and staying overnight. The Reshes planned to leave from Mr. Dillsworth’s home the next morning and to take Mr. Dillsworth to his doctor’s office for a post-surgery consultation. While driving to Mr. Dillsworth’s home, Mr. Resh stopped at a drugstore so that his wife could purchase some medication that Mr. Dillsworth needed. Their trip then resumed, but a short time later the Resh vehicle was involved in the accident with Mr. Bowser.

D. Mr. Resh’s Health and Driving History Prior to the accident, Mr. Resh had suffered from diabetes for about thirty years. He was insulin dependent and was required to take insulin once every morning and once every evening. Prior to the accident, Mr. Resh had experienced bleeding behind the eyes (diabetic retinopathy), and he had undergone several surgeries to deal with that problem. His regular ophthalmologist, at all times here pertinent, was Dr. Steven Powell.

Dr. Powell’s medical records, which were admitted into evidence, showed the following: • March 27, 1995: Dr. Powell noted that Mr. Resh was a diabetic, that at times his sugar levels exceeded 500, that he experienced burning and watering of his eyes and, during a period of two to three years, had difficulty holding his eyes open. • May 24,1995: Mr. Resh previously had cataracts removed but wondered why he still could not see better. Dr. Powell explained that the problem was caused by diabetes. • February 2, 1996: Mr. Resh complained that objects seemed smaller and brighter. • August 27, 1996: Mr. Resh complained that his vision was getting blurry and that images looked smaller. • May 9, 1997: Mr. Resh complained that his vision gets foggy. ⁶²⁶ • August 22, 1997: Mr. Resh complained that his vision was getting dimmer. • December 12, 1997: In Dr. Powell’s notes, under the heading “Diagnostic or Treatment Plan/Options,” the words “avoid night driving” appear. Also, an examining physician at Sacred Heart Hospital felt that the blood vessels in Mr. Resh’s eyes were bleeding and that they needed to be checked right away. • February 13, 1998: A note says: “C/O [complains of] VA [visual acuity] not very good.” • September 25,1998: Mr. Resh’s visual acuity continued to fluctuate. • August 24, 1999: Mr. Resh continued to complain of watering and burning in his eyes. His visual acuity continued to fluctuate. • September 28, 1999: Mr. Resh complained to Dr. Powell that he could not make things out at a distance during a period of two or three years and that this had gotten worse lately.

His vision was tested and was recorded as 20/60 in one eye and 20/80 in the other. At the time of Mr. Resh’s admission to Garrett County Memorial Hospital shortly after being struck with an air bag in the subject accident, a physical assessment indicated that he complained of blurred vision. While at the hospital, he was given his second dose of insulin for that day. Mr. Resh testified that most of the information in his chart was given to Dr. Powell’s secretary.

He recalled that when he did complain to Dr. Powell about blurriness he was referring to blurry vision when he looked at “real fine measurements on a rule[r].” He acknowledged that in August of 1997 he told Dr. Powell that “his vision was getting dimmer,” but then Dr. Powell changed the prescription for his glasses and his vision improved. Mr. Resh further testified that his vision would fluctuate with his blood sugar. When his blood sugar “was up,” he “could see,” but when it went too low, his vision would become blurry. He also admitted telling Dr. Powell that he could not see things at a distance and that the problem was ⁶²⁷ worse lately; he said, however, that he was referring to his inability to “read a rule[r].” He testified that he could clearly see things at a distance, such as birds on a power line, which he could see at a distance of three — or four-hundred feet.

In regard to the evening of the accident, Mr. Resh testified that he was experiencing no vision problems. He said that, immediately after the air bag was deployed upon impact of the van with the skidloader, he was gasping for air and might have been knocked unconscious. He also said that being struck by the air bag might have caused his blurry vision. Mr. Resh had been, at the time of the accident, a licensed driver in Maryland for over thirty-five years.

He had no restrictions on his license and denied he had never been advised by Dr. Powell to avoid driving at night. Mrs. Resh acknowledged that she accompanied her husband during his visits to Dr. Powell’s office. She also went into the examining room with her husband and was present during all discussions between Dr. Powell and her husband. She testified that Dr. Powell had never told her husband to avoid night driving.

Mrs. Resh also testified that her husband frequently drove at night and that, prior to the subject accident, he had never been involved in any other vehicular accidents. Moreover, his Maryland license had never been suspended or revoked. Dr. Thomas R. Friberg, a board certified ophthalmologist, testified on behalf of Mr. Bowser. He reviewed deposition testimony of Mr. Resh, along with Mr. Resh’s medical records.

He testified, to a reasonable degree of medical certainty, that Mr. Resh suffered from diabetic retinopathy, which affects visual acuity, the ability to observe objects at a distance, the ability to perceive light, as well as the ability to see at night. In his opinion, but for the existence of Mr. Resh’s visual impairment, he would have been able to see the Bowser vehicle in sufficient time to avoid the accident. According to Dr. Friberg’s testimony, Mr. Resh’s vision, at the time of accident, with glasses, was 20/60 in one eye and 20/80 in the other. ⁶²⁸ II. ANALYSIS First Issue Presented Mr. Bowser contends that the trial court erred when, after all the evidence had been presented, it denied his motion for partial judgment on the issues of agency and imputed negligence.

In this regard, he claims: (1) Mr. Resh’s negligence should, as a matter of law, have been imputed to Mrs. Resh; (2) Mr. Resh, as a matter of law, was the agent of Mrs. Resh; (3) Mr. Resh, as a matter of law, was the agent of Mr. Dillsworth; and (4) Mrs. Resh was also the agent of Mr. Dillsworth and therefore her imputed negligence should be attributed to Mr. Dillsworth. A. Imputed Negligence In Mackey v. Dorsey, 104 Md.App. 250, 262-63 , 655 A.2d 1333 (1995), Judge Alpert, speaking for this Court, said: Appellants ... rely on the theory, not entirely different from their agency theory, that Cooper’s negligence may be imputed to Dorsey. In a leading case on imputed negligence, Smith v. Branscome, 251 Md. 582, 595 , 248 A.2d 455 ... (1968), the Court of Appeals summarized this theory as follows: [U]nder Maryland tort law, an owner because of his presumed control over his car when present though not physically handling the wheel, may be held liable in the event of a collision, to the same extent as if he were manually controlling or operating the vehicle.

In such a case the negligence of the driver is said to be imputed to the owner. However, an agency relationship is not necessary to be shown, for the failure of the owner, who is present, to exercise his presumed control makes him liable. (quoting Gray v. Citizens Casualty Co., 286 F.2d 625, 627 (4th Cir.1960)) (citations omitted). The driver’s negligence is imputed to the owner on the basis that “the owner-passenger retains his right to control the movements of the vehicle.” Nationwide Mutual Ins. ⁶²⁹ Co. v. Stroh, 314 Md. 176, 181 , 550 A.2d 373 ...

(1988). In Powers v. State, 178 Md. 23, 28 , 11 A.2d 909 ... (1940), the Court stated: It is well established that the owner of an automobile, who is riding in it while driven by another, is not relieved of responsibility because he is not personally at the wheel, when he tacitly assents to the manner in which it is driven.... If the car is negligently operated, it is presumed that the owner consented to the negligence.

(Footnote omitted.) The Court of Appeals, in Nationwide Mut. Ins. Co. v. Stroh, 314 Md. 176 , 550 A.2d 373 (1988), said: [W]here an automobile owner-passenger grants permission to another to drive his car, and the permissive operator drives negligently, the owner has presumptively consented to the negligence, which becomes imputed to him. The imputation is made based upon the theory that the owner-passenger retains his right to control the movements of the vehicle.

Conversely, rebuttal of the presumption of right to control precludes imputation of negligence. Id. at 181 , 550 A.2d 373 . In Stroh , the Court held that the negligence of the husband, as the driver and co-owner of the vehicle involved in the accident, could not be imputed to his wife, a co-owner/passenger, so as to bar the wife from recovering for injuries caused in a collision between the vehicle driven by her husband, and another driven by a third party. Id. at 182-85 , 550 A.2d 373 .

The Stroh Court explained its rationale as follows: In Pavlos v. Albuquerque, 82 N.M. 759 , 487 P.2d 187, 193 (1971), the New Mexico Court of Appeals drew a pertinent distinction between the sole-owner and co-owner situations: Where a non-owner is driving, and the owner is present in the car, a presumption exists that the driver is the agent of the owner. [Citation]. This presumption is based on the theory that the owner, present in the car, has the right to control the driver. [Citation], No such theory is applicable where one co-owner is driving and the other ⁶³⁰ co-owner is a passenger. It is inapplicable because the co-owners are equal in status and ownership; the co-ownership refutes agency. [Citation]. Since, as between co-owners, presence is an insufficient basis for a presumption of agency, we do not reach the reality of a “right to control” a car speeding down the highway.

Finally, in Kalechman v. Drew Auto. Rental, Inc., 33 N.Y.2d 397 , 353 N.Y.S.2d 414, 416 , 308 N.E.2d 886, 888 (1973), the New York Court of Appeals, before abandoning altogether the doctrine of imputed negligence, described the rule as follows: “The driver’s negligence will be imputed to the passenger to defeat his action whenever the passenger has the exclusive authority to control the operation of the vehicle----” Significantly, the New York Court limited the doctrine to only those instances where the passenger has exclusive authority over the vehicle’s operation. In a co-owner situation, such as existed between Richard and Ellen Stroh, the passenger, at most, enjoys a non-exclusive, mutual authority to control the vehicle’s operation, and consequently, application of the doctrine of imputed negligence is simply inapt. * * * Moreover, imputation of negligence to Ellen Stroh would not further the primary policy aim undergirding the doctrine of imputed negligence, namely, that of locating a “deep pocket” to provide recovery to an innocent victim of another’s negligence. Instead, imputing Richard Stroh’s negligence to his wife, as Nationwide beseeches us to do, the victim of the negligence of a third-party tortfeasor, would be unjustly barred from recovery.

As the court stated in LaMonte v. DeDiego, 274 So.2d 254 (Fla.App.1973): “it is important to distinguish cases in which the liability of an owner or co-owner is in issue from those in which that owner seeks recovery from a negligent party.” (Emphasis in original). Id. at 183-85, 550 A.2d 373 (emphasis added). The question then becomes was there evidence from which a rational jury could find that the 1994 van driven by ⁶³¹ Mr. Resh was co-owned by Mr. and Mrs. Resh. If that question is answered in the affirmative, Mr. Bowser’s motion for judgment as to imputed negligence should have been denied based on Stroh because there can be no imputed negligence between co-owners.

It is true, of course, that the undisputed evidence was that the 1994 van was titled in Mrs. Resh’s name alone. But this fact is not determinative as to ownership. As the Court of Appeals said in Liberty Mut. Ins.

Co. v. Am. Auto. Ins., 220 Md. 497 , 154 A.2d 826 (1959): This Court, and a majority of those of other jurisdictions, have rejected [the contention made by Liberty Mutual] by holding that title registration merely raises a presumption of ownership, which, not being conclusive, is rebuttable by evidence to the contrary if such is produced. It is, therefore, clearly a question for the trier of the facts to decide.

Id. at 500 , 154 A.2d 826 (citations omitted). In the case sub judice, there was testimony, if believed, that despite the registration of the vehicle, Mr. and Mrs. Resh were, in fact, joint owners. See testimony of Mr. and Mrs. Resh, reviewed in Part IB, supra. Therefore, the trial judge did not err in denying Mr. Bowser’s motion for partial judgment as to the issue of imputed negligence. 3 ⁶³² B. Agency The ease of Faith v. Keefer, 127 Md.App. 706 , 736 A.2d 422 (1999), is dispositive on the agency issue.

Timothy Keefer was involved in an accident when driving a motor vehicle eo-owned by Rebecca and Henry Faith. Id. at 713 , 736 A.2d 422 . Keefer drove the motor vehicle off the roadway and struck a utility pole, killing his passenger, Rebecca Faith (“Mrs. Faith”). Id.

In Faith , Judge Hollander, speaking for this Court, said: Appellants [including Mrs. Faith’s husband] contend that, even if the Answers [to Interrogatories] were properly considered, the lower court erred in granting summary judgment based on principles of agency, because the evidence was not sufficient to establish, as a matter of law, a principal-agent relationship between Rebecca and Keefer. Appellants essentially claim that the trial court erred because it based its decision on appellee’s self-serving, uncorroborated assertion in the Answers that, when he and the decedent “were leaving Shoenagles [she] took the keys to her vehicle, threw them on the ground and told [appellee], ‘You drive, you’re driving home.’ ” Appellants maintain that there was no evidence from which the court could infer that Rebecca retained direction, supervision, and control over Keefer to establish an agency relationship as a matter of law. Relying on Slutter v. Homer, 244 Md. 131, 139 , 223 A.2d 141 ... (1966), appellee [Keefer] posits that an agency relationship existed, as a matter of law, which defeated appellants’ claims.

In determining whether an agency theory applies, Keefer urges us to consider “the relationship of the parties and the nature of the expedition during which the accident occurred.” Appellee points to the undisputed facts that Rebecca owned the vehicle and he was driving them to the boarding house [where Rebecca and appellee lived]. “Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and ⁶³³ consent by the other so to act.” Restatement (Second) of Agency § 1 (1958). In Green v. H & R Block, Inc., 355 Md. 488 , 735 A.2d 1039 ... (1999), the Court recognized that “[t]he creation of an agency relationship ultimately turns on the parties’ intentions as manifested by their agreements or actions.” Green, 355 Md. at 503 , 735 A.2d 1039 .... Although an agency relationship “can be created [either] by express agreement or by inference from the acts of the agent and principal,” id., there are several factors that are relevant to determine the existence of such a relationship.

Id., at 503-04 , 735 A.2d 1039____These include the agent’s power to alter the legal relations of the principal, the agent’s duty to act primarily for the benefit of the principal, and the principal’s right to control the agent Id.; see also United Capitol Ins. v. Kapiloff, 155 F.3d 488 , 498 (4th Cir.1998); Schear v. Motel Management Corp., 61 Md.App. 670, 687 , 487 A.2d 1240 ... (1985); Restatement (Second) of Agency §§ 12-14 (1958). These factors, however, are “neither exclusive nor conclusive considerations in determining the existence of an agency relationship.” Green, 355 Md. at 506 , 735A.2d 1039.... In Mackey v. Dorsey, 104 Md.App. 250, 260 , 655 A.2d 1333 ...

(1995), we said: “[U]nder Maryland law there is a presumption that ‘the negligent operator of a vehicle is the agent, servant, or employee of the owner acting within the scope of his employment.’ This presumption is a rebuttable one, however ....” (quoting Williams v. Wheeler, 252 Md. 75, 82 , 249 A.2d 104 ... (1969)) (citations omitted). See also Toscano v. Spriggs, 343 Md. 320, 325 , 681 A.2d 61 ... (1996); Rogers v. Frush, 257 Md. 233, 244 , 262 A.2d 549 ...

(1970); Campfield v. Crowther, 252 Md. 88, 97 , 249 A.2d 168 ... (1969); House v. Jerosimich, 246 Md. 747, 750 , 230 A.2d 282 ... (1967); Phillips v. Cook, 239 Md. 215, 222 , 210 A.2d 743 ... (1965); State ex rel.

Shipley v. Walker, 230 Md. 133, 137 , 186 A.2d 472 ... (1962); Hoerr v. Hanline, 219 Md. 413, 419-20 , 149 A.2d 378 ... (1959). Of particular relevance here, the Court in Green emphasized that, ordinarily, “the question of the existence of the ⁶³⁴ agency relationship is a factual matter and must be submitted to the jury.” Green, 355 Md. at 504 , 735 A.2d 1039 ...

(emphasis added); P. Flanigan & Sons v. Childs, 251 Md. 646, 653 , 248 A.2d 473 ... (1968). Accordingly, even assuming that appellee presented legally sufficient evidence of an agency relationship, whether an agency relationship was actually created “is a factual matter and must be submitted to the jury.” Green, 355 Md. at 527 , 735 A.2d 1039 ---- On this basis, we are satisfied that summary judgment was not warranted. Id. at 738-40, 736 A.2d 422 (emphasis added).

In the case sub judice, there clearly was a jury issue presented as to whether Mr. Resh was acting as Mrs. Resh’s agent. It was far from clear whether Mrs. Resh had a right to control her husband’s actions on the night of the accident or whether Mr. Resh had a duty to act primarily for Mrs. Resh’s benefit. Under such circumstances, “whether an agency relationship was actually created” between Mr. and Mrs. Resh was a “factual matter ... [that] must be submitted to the jury.” Faith, supra, 127 Md.App. at 740 , 736 A.2d 422 . In the case at hand, Mr. Bowser argues that, based on the undisputed facts presented at trial, the jury could not have appropriately found that the presumption of agency had been rebutted.

According to appellant, Mr. Resh was operating Mrs. Resh’s vehicle in the course of transporting Mrs. Resh and her father “to the hospital for pre-arranged medical care.” This last statement is untrue. At the time of the accident, Mr. Resh was driving the van to his father-in-law’s house where he and his wife and Mr. Dillsworth planned to stay the night. Appellant continues: “Josephine I. Resh was benefited by Francis E. Resh’s operation of the Resh vehicle as it freed [Mrs. Resh] to attend to her father’s needs during the trip.” At trial, there was no testimony that the reason Mr. Resh drove was to allow Mrs. Resh to give medical care to her father. In fact, there was no testimony that Mrs. Resh did render medical care to her father during the trip in question, ⁶³⁵ i.e., the trip from the Resh’s home in Accident, Maryland, to the scene of the accident.

Appellant also claims that Mrs. Resh’s “deposition testimony made it clear that she was in charge of the