Toscano v. Spriggs

RODOWSKY, Judge. We issued certiorari to the Court of Special Appeals, after its unreported decision in this motor vehicle tort action, to review that court’s application of the presumption that the operator of a motor vehicle is the agent, servant or employee of its owner and is acting within the scope of such employment. In holding that the presumption had not been rebutted, the intermediate appellate court relied heavily on the presumption of permissive use, articulated in State Farm Mut. Auto.

Ins. Co. v. Martin Marietta Corp., 105 Md.App. 1 , 657 A.2d 1183 , cert. granted, 340 Md. 268 , 666 A.2d 144 (1995), cert. dismissed, 342 Md. 603 , 679 A.2d 104 (1996). In the instant case we agree with the owner’s argument that the presumption of agency was conclusively negated, and we shall reverse. The facts relevant to agency involve three individuals: the petitioner, Kathryn C. Toscano (Toscano); John Edward Farmer (Farmer); and Charles David Breedlove (Breedlove).

Toscano was the owner, but not an occupant, of a Ford Thunderbird automobile when it was involved in the subject accident. Farmer and Breedlove were in the Thunderbird at the time of the accident. The latter was licensed to operate a motor vehicle but the former was not. When the accident occurred one or the other was driving, but just which one was the driver was not resolved by a fact-finding in the trial court.

At the time of the accident, October 29, 1987, Toscano resided in Waldorf, Maryland, and she was employed full time in Clinton, Maryland. Separated or divorced from her husband, Toscano had custody of her two young children who were tended to by a live-in nanny. Breedlove in October 1987 was Toscano’s gentleman friend. He had been married and divorced.

Perhaps five nights a month he spent the night at Toscano’s home. In November ³²³ 1987 he moved into Toscano’s home, and the couple later had a child. They separated in July 1990. Farmer was fifteen years old at the time of the accident.

He never knew his father. His mother resided somewhere in the Alexandria, Virginia area where Farmer was enrolled in public school. His mother seems to have let the child fend for himself with the result that, in the summer and fall of 1987, he was on some form of probation in Northern Virginia. Toscano first encountered Farmer in July 1987.

He was working in the kitchen of a night club in the Georgetown section of Washington, D.C. where Breedlove was also employed. Toscano took the youth to her heart and to her home. She fed him and bought him clothes. She drove him to school and picked him up after school.

She discussed his problems with his probation officer and with the guidance counselor at his school. She sought Farmer’s mother’s consent for Tosca-no to be recognized legally as his foster mother, but the birth mother would not consent. Toscano considered herself to be the defacto foster mother of Farmer. The accident occurred when Toscano’s Thunderbird struck a pedestrian, the respondent, Hope Spriggs (Spriggs), while she was crossing Maryland Route 210 in Prince George’s County.

In July 1990 Spriggs filed a multi-count complaint against Toscano, Farmer, and by amendment to the complaint, Breed-love. Uncertain as to which occupant was the operator, Spriggs pled, alternatively, counts of negligence against each occupant, counts of negligent supervision and negligent entrustment against Toscano as to each occupant, and counts of respondeat superior liability against Toscano predicated on each occupant’s being her agent. Judgment in favor of Spriggs was entered against Farmer and Breedlove, both of whom had defaulted. Damages were awarded, based on the proof produced at the trial of Toscano.

Neither Farmer nor Breedlove testified at trial. As part of her case, the plaintiff read into evidence portions of the deposition of Toscano who denied that either Breedlove or Farmer had her permission or was her agent. At the close of the plaintiffs case the trial ³²⁴ court granted a motion for judgment in favor of Toscano on all counts against her. There were cross-appeals to the Court of Special Appeals.

Spriggs argued that there was sufficient evidence of negligent entrustment to Breedlove, but Spriggs did not question on appeal the ruling in favor of Toscano on alleged negligent entrustment to Farmer. Spriggs also challenged judgment for Toscano on the agency issue, but she factually limited that argument to agency on Breedlove’s part. She argued that “Toscano’s assertion that she did not ever allow David Breed-love to use her car did not destroy the presumption of agency---- Such assertion was neither uncontradicted nor conclusive____” Court of Special Appeals No. 1313, September Term, 1994, Appellant’s Brief at 17. In the Court of Special Appeals Toscano, by cross-appeal, presented, inter alia, the issue of trial court error in admitting hearsay testimony that Breedlove was the driver.

The Court of Special Appeals affirmed the trial court as to negligent entrustment, but reversed on agency. On the claim of negligent entrustment the intermediate appellate court concluded that Breedlove’s driving record and the evidence of Toscano’s notice of that record were insufficient to support the claim. With respect to agency, Toscano had argued that “[t]he only testimony at trial was that at the time the accident occurred, Mr. Breedlove and Mr. Farmer were proceeding to Mr. Farmer’s workplace to take Mr. Farmer to work.” Court of Special Appeals No. 1313, September Term, 1994, Appellee/Cross-Appellant’s Brief at 10. The Court of Special Appeals did not directly address that argument.

That court considered Toscano to have contended that “her denial that she had given anyone permission to drive the vehicle was so convincing that the presumption of agency had been rebutted as a matter of law.” The court found no merit in that contention. In addition, the appellate opinion speaks of an “accident caused by the negligence of ... Breedlove,” and says that “[a]t the time of the accident, Breedlove was driving an ³²⁵ automobile owned by ... Toscano.” In the concluding paragraph of the opinion the court stated: “It may well be that, on remand, the jury will conclude that Breedlove was neither an agent nor a permissive user.” We granted Toscano’s petition for the writ of certiorari.

It raises two issues: (1) whether the presumption of agency was conclusively rebutted, and (2) whether the Court of Special Appeals could decide the identity of the driver of the Toscano vehicle. Spriggs did not file any cross-petition for certiorari. Consequently, the holding of the Court of Special Appeals affirming denial of the claim of negligent entrustment to Breedlove is final. I “Mere ownership of a car does not impose liability for injuries caused in the driving of it.

Liability, when it exists, is not for the car, but only for the act or omission of the person driving. And when the owner has not himself been the negligent cause of an injury, he can be held liable vicariously only when the negligence has been that of his servant engaged in his affairs. He is not even liable for the negligence of his general servant, his chauffeur, for instance, unless at the time the servant has been conducting the owner’s affairs.” Schneider v. Schneider, 160 Md. 18, 20-21 , 152 A. 498, 499 (1930). There is a presumption that the operator of a motor vehicle is the agent of the owner.

It was first recognized by this Court in Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406 , 56 A. 833 (1904), a case involving an intersectional collision between the plaintiffs horse-drawn bread wagon and the defendant’s horse-drawn beer barrel wagon. Chief Judge McSherry, writing for the Court, relied in part upon Joyce v. Capel & Slaughter, 8 Car. & Pay. 370 (1838), a nisi prius decision involving a collision between a boat and a barge on the Thames River. In Joyce, regulations of the Watermen’s Company required identifying numbers to be affixed to ³²⁶ barges. Id.

In answer to the defendant’s argument that there was no proof that the person steering the barge was a servant of the defendant, the trial judge ruled that it was the defendant’s obligation to show that the barge had been hired out. Id. at 370-71. Maryland appellate courts have applied the presumption of agency in numerous cases. E.g., Campfield v. Crowther, 252 Md. 88 , 249 A.2d 168 (1969); Williams v. Wheeler, 252 Md. 75 , 249 A.2d 104 (1969); Martin Furniture Corp. v. Yost, 247 Md. 42 , 230 A.2d 338 (1967); House v. Jerosimich, 246 Md. 747 , 230 A.2d 282 (1967); Phillips v. Cook, 239 Md. 215 , 210 A.2d 743 (1965); State ex rel.

Shipley v. Walker, 230 Md. 133 , 186 A.2d 472 (1962); Hoerr v. Hanline, 219 Md. 413 , 149 A.2d 378 (1959); Grier v. Rosenberg, 213 Md. 248 , 131 A.2d 737 (1957); Fowser Fast Freight v. Simmont, 196 Md. 584 , 78 A.2d 178 (1951); Brown v. Bendix Aviation Corp., 187 Md. 613 , 51 A.2d 292 (1947); Erdman v. Horkheimer & Co., 169 Md. 204 , 181 A. 221 (1935); Mackey v. Dorsey, 104 Md.App. 250 , 655 A.2d 1333 (1995). 1 There is also a presumption that a non-owner-operator of a motor vehicle operates it with the permission of the owner. State Farm, 105 Md.App. at 8-9 , 657 A.2d at 1186-87 . A presumption of permissive use is implied in the presumption of agency. Id. at 11 , 657 A.2d at 1188 .

A presumption of permissive use, as consistent with Maryland law, was applied