State, Use of Shipley v. Walker

Henderson, J., delivered the opinion of the Court. These cross-appeals are from judgments entered in actions filed by the parents and administrator of a deceased boy against the driver of an automobile and its owner. The appellants contend that the trial court erred in granting a directed verdict in favor of the owner, Walker, and in granting a remittitur upon a finding that the verdict against the driver, Tyler, was excessive. The appellees and cross-appellant contend that the evidence was legally insufficient to support a verdict against either of them, that the court erred in several of its rulings on evidence, and in refusing certain requested instructions.

The facts in the case are virtually undisputed. On October 1, 1959, Tyler, aged 16, was operating a 1955 Plymouth sedan owned by his stepfather, Walker, with the latter’s permission. Tyler had obtained his regular driver’s license about a month before. He drove from his home in Anne Arundel County to school, and from school to Baltimore, after the morning session, to exchange a pair of tennis shoes that his mother had purchased for him.

He was accompanied by his two brothers and the decedent, Rocky Shipley, aged 14, whom he had picked up near Glen Burnie on the Ritchie Highway. Returning from Baltimore, he dropped Rocky at Rocky’s home since Rocky had not had his lunch. He told Rocky he was going home. But instead of returning to his own home, Tyler turned into Primrose Lane to practice driving in sand.

Primrose Lane is an unpaved, deadend, private road leading from Old Stagg Road over property owned by a Mr. Dicus, about a block distant from Rocky’s house. Primrose Lane is about a block in length, and has a sharp bend, obscured by brush. Tyler made several practice runs up and down Primrose Lane. As he came around the bend on one of these runs he saw an object in the road which proved to be Rocky.

He tried to avoid striking Rocky, but failed to do so. We think it is clear that Tyler was not the agent or servant ¹³⁷ of Walker at the time of the accident. The presumption of agency arising from ownership is rebuttable. Hoerr v. Hanline, 219 Md. 413, 420 , Miller v. Shegogue, 221 Md. 292, 294 .

The mere fact that the owner has given permission to the driver to use his car is not enough to make him liable. Pollock v. Watts, 142 Md. 403 . In practicing driving on a private road at some distance from the direct route to his home, we think Tyler was engaged on a mission of his own, serving no purpose of the owner, even if we assume that the mission of exchanging the shoes was in the parental interest of the stepfather. The authorities on the question of departure from the course of employment or agency, as distinguished from a mere deviation, are summed up in the cases of Trucking & Storage, Inc. v. Durkin, 183 Md. 584 , and Fowser Fast Freight v. Simmont, 196 Md. 584 .

We think the uncontradicted evidence here establishes a departure. Nor do we find merit in the argument that the stepfather could be liable on the theory that Tyler was known to be an incompetent driver. Granting that he was somewhat inexperienced, there is nothing to indicate that he was not ordinarily a careful and qualified driver, and the evidence is uncontradicted that he had obtained a regular license. Cf.

Rounds, Admr. v. Phillips, 166 Md. 151, and Whitelock v. Dennis, 139 Md. 557 . The record also shows, as an admitted fact, that Tyler had filed a certificate of Einancial Responsibility.