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Kathryn C. Toscano v. Hope Spriggs, No. 101, September Term, 1995. [Respondeat Presumption Distinguished. Superior Of Motor And Tort Non-owner Of Operator Use

Agency

Presumption

Permissive

Held:

Presumption Of Agency Conclusively Rebutted

By Uncontradicted Evidence That Purpose Of Trip Was Transporting To Place Of Employment A Person Not Employed By Owner Of Vehicle.]

Circuit Court for Prince GeorgeUs County Case #CAL90-17217

IN THE COURT OF APPEALS OF MARYLAND No. 101 September Term, 1995 ____________________________________

KATHRYN C. TOSCANO v.

HOPE SPRIGGS

____________________________________ Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ____________________________________ Opinion by Rodowsky, J. ____________________________________ Filed: August 21, 1996

We issued certiorari to the Court of Special Appeals, after its unreported decision in this motor vehicle tort action, to review that courtUs 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, ____ Md. ____, ____ A.2d ____ (1996) [No. 91, September Term, 1995, dismissed July 24, 1996]. In

the instant case we agree with the ownerUs argument that the presumption of agency was conclusively negated, and we shall reverse. The facts relevant to agency involve three individuals: petitioner, Kathryn C. Toscano (Toscano); John Edward the

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 The latter was When

in the Thunderbird at the time of the accident.

licensed to operate a motor vehicle but the former was not.

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.

-2At 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 ToscanoUs gentleman friend. had been married and divorced. spent the night at ToscanoUs home. He

Perhaps five nights a month he In November 1987 he moved into They separated

ToscanoUs home, and the couple later had a child. in July 1990.

Farmer was fifteen years old at the time of the accident. never knew his father.

He

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. the youth to her heart and to her home. clothes. Toscano took

She fed him and bought him

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 FarmerUs motherUs

consent for Toscano to be recognized legally as his foster mother,

-3but the birth mother would not consent. Toscano considered herself

to be the de facto foster mother of Farmer. The accident occurred when ToscanoUs Thunderbird struck a pedestrian, the respondent, Hope Spriggs (Spriggs), while she was crossing Maryland Route 210 in Prince GeorgeUs County. In July 1990

Spriggs filed a multi-count complaint against Toscano, Farmer, and by amendment to the complaint, Breedlove. 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 occupantUs being her agent. was entered against Farmer and Judgment in favor of Spriggs Breedlove, both of whom had

defaulted.

Damages were awarded, based on the proof produced at Neither Farmer nor Breedlove testified at

the trial of Toscano. 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 plaintiffUs case the trial 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

-4Farmer. Spriggs also challenged judgment for Toscano on the agency she factually limited that argument to agency on

issue, but

BreedloveUs part.

She argued that "ToscanoUs assertion that she did

not ever allow David Breedlove to use her car did not destroy the presumption of agency .... Such assertion was neither

uncontradicted nor conclusive ...."

Court of Special Appeals No. In the Court

1313, September Term, 1994, AppellantUs Brief at 17.

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 BreedloveUs driving record and the evidence of ToscanoUs 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. FarmerUs workplace to take Mr. Farmer to work." Court of Special Appeals No. 1313, September The Court of That court

Term, 1994, Appellee/Cross-AppellantUs Brief at 10.

Special Appeals did not directly address that argument.

considered Toscano to have contended that "her denial that she had given anyone permission to drive the vehicle was so convincing that

-5the 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 automobile owned by ... Toscano." stated: In the concluding paragraph of the opinion the court

"It may well be that, on remand, the jury will conclude

that Breedlove was neither an agent nor a permissive user." We granted ToscanoUs petition for the writ of certiorari. raises two issues: It

(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 ownerUs 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

-6Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 A. 833 (1904), a case involving an intersectional collision between the plaintiffUs horse-drawn bread wagon and the defendantUs 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 WatermenUs Company Id. In

required identifying numbers to be affixed to barges.

answer to the defendantUs 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 defendantUs 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.

-7204, 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. Farm, 105 Md. App. at 8-9, 657 A.2d at 1186-87. State

A presumption of Id. at 11,

permissive use is implied in the presumption of agency. 657 A.2d at 1188.

A presumption of permissive use, as consistent with Maryland law, was applied in Royal Indem. Co. v. Wingate, 353 F. Supp. 1002 (D. Md.), affUd., 487 F.2d 1398 (4th Cir. 1973). An automobile

rental company had leased a vehicle on short term to Mooney. Wingate, 353 F. Supp. at 1003. Wingate was operating the leased Id. The lessorUs

vehicle when it collided with the tort plaintiff.

insurer disclaimed coverage for Wingate because the omnibus clause in its policy required an insured to operate with the permission of the lessor, but the lease had limited operation of the vehicle to Mooney. 21 J. Id. Neither Mooney nor Wingate testified. Insurance Law & Practice

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