House v. Jerosimich

Marbury, J., delivered the opinion of the Court. George Jerosimich, plaintiff-appellee, brought suit in the Circuit Court for Anne Arundel County to recover damages sustained when the parked truck in which he was seated was struck in the rear by an automobile owned by Edward J. House, defendant-appellant, and operated by his wife, Alice M. House, co-defendant. A jury found for the plaintiff against both defendants ; and from the judgment on the verdict, only the husband has appealed. On February 20, 1963, after 8:00 a.m., appellee was seated in his truck which was parked on the shoulder of Solley Road in Anne Arundel County when the truck was struck in the rear by appellant’s automobile driven by his wife.

Prior to the accident, appellant had been driven to meet, in the Curtis Bay section of Baltimore City, a person who was to drive him to work. After leaving appellant at the meeting place, his wife drove to Brooklyn to purchase meat for their daughter’s lunch. She then returned toward her home on the same road she had taken to deliver her husband. She was approximately one block from their home when the collision occurred.

Appellant contended that the trial court erred in not granting a motion for a directed verdict at the close of all the evidence in that allegedly there was no evidence legally sufficient to entitle a jury to find the wife the agent of the husband. Appellant also contended that the trial court erred in its instructions on the issue of agency. The husband-owner of an automobile is liable for his wdfe’s negligence in the use of his automobile when she is acting as his servant or agent. Talbott v. Gegenheimer, 245 Md. 186 , 225 A. 2d 462 ; Charles v. Baltimore, 138 Md. 523 , 114 Atl. 565 .

In determining whether the wife is the agent of her husband, the ordinary rules of agency are applied. Charles v. Baltimore, ⁷⁵⁰ supra; 6 Blashfield, Automobile Law and Practice, Section 255.1, page 408. The driver of an automobile is presumed to ibe the agent of the owner and to be acting within the scope of employment. State, Use of Shipley v. Walker, 230 Md. 133 , 186 A. 2d 472 ; Hoerr v. Hanline, 219 Md. 413 , 149 A. 2d 378 .

See also Pollock v. Watts, 142 Md. 403, 406-07 , 121 Atl. 238 . 'This presumption is rebuttable, but evidence required to destroy it as a matter of law must be both uncontradicted and •conclusive; and if the evidence as to agency is contradicted, or if uncontradicted is not conclusive, the question of agency is for 'the jury. State, Use of Shipley v. Walker, Hoerr v. Hanline, both supra. The evidence, in a light most favorable to the appellee, was ■ sufficient to take the question of the wife’s agency to the jury. 'The wife testified that at his request she drove her husband to ■meet the person who was to drive him to work. Counsel for ■ appellant admitted in oral argument before this Court that if the accident had occurred while the wife was driving her husband to the Curtis Bay area, the wife could have been found to have been the agent of the husband.

See Slutter v. Homer, 244 Md. 131 , 223 A. 2d 141 . Appellant contended that the primary purpose of the wife 'in using her husband’s automobile was for her own purposes and 'that once she had dropped her husband off and proceeded to ■purchase the luncheon meat for the daughter, the agency was 'terminated. Assuming without deciding that the wife was not the agent •of her husband when she proceeded to purchase the luncheon meat, see Talbott v. Gegenheimer, supra, the evidence was not •conclusive and was in conflict on the question whether the primary purpose of the wife was the transportation of the husband to meet the person who was to drive him to work or the pur- ■ chase of luncheon meat. Compare Fletcher v. Meredith, 148 .

Md. 580, 129 Atl. 795 ; Pollock v. Watts, supra. In Fletcher , a case tried without a jury, the plaintiff was ■struck by a truck owned by defendant and operated by A. A -asked defendant if defendant would lend him the truck belonging to the firm to go to the funeral of an uncle. Defendant said "that the truck could not be spared, but there' was a load of lum ⁷⁵¹ ber to be delivered in the same direction A would have to go to get to the funeral. Defendant said that if A was willing to deliver the lumber, he could use the truck to go to the funeral afterwards.

A delivered the lumber and went to the funeral, and on his return, the accident occurred. Recovery was sought on the theory that A had finished his own use of the truck and had returned to the employer’s business by