116 F.2d 552 (D.D.C. 1940), 7502, Rosenberg v. Murray

Docket Nº:7502.
Citation:116 F.2d 552
Party Name:ROSENBERG v. MURRAY et al.
Case Date:November 12, 1940
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 552

116 F.2d 552 (D.D.C. 1940)



MURRAY et al.

No. 7502.

United States Court of Appeals, District of Columbia.

November 12, 1940

Argued Oct. 14, 1940.

Isadore H. Halpern, of Washington, D.C., for appellant.

H. Eugene Bryan, of Washington, D.C., for appellees.



In 1937 appellees were injured in an automobile collision in Washington City. They brought this action on the ground that their injuries were caused by the negligence of an agent in driving a car owned by appellant.

At the close of all the evidence appellant moved for binding instructions. This motion was denied, and a verdict and judgment for appellees followed. Although appellant did not have a certificate of title, there was, perhaps, sufficient evidence that he owned the offending vehicle and likewise sufficient evidence of the driver's negligence. The only substantial question for decision here is whether the driver was appellant's agent. A statute in the District of Columbia 1 makes the owner's express or implied consent to the operation by another of his vehicle on public highways the equivalent of agency. Forrester v. Jerman, 67 App.D.C. 167, 90 F.2d 412. The testimony was that the car was driven by Dyson, a laborer employed by appellant in his junk yard on the outskirts of Washington City. At the time of the trial, Dyson was in jail and was not produced as a witness, and appellees rely wholly upon the statute, which provides that the proof

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of ownership of the offending motor vehicle 'shall be prima facie evidence that such person (the driver) operated said motor vehicle with the consent of the owner.'

The effect of this provision is simply to shift the burden of proof and to impose on the defendant owner the affirmative duty of proving that the car was not at the time of the accident operated with his express or implied consent. Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632. This presumption continues until there is credible evidence to the contrary, and ceases when there is uncontradicted proof that the automobile was not at the time being used with the owner's permission. In the case under consideration appellant testified positively and unequivocally that Dyson had taken the car without his knowledge, authority, or consent, and his uncontradicted statement to this effect, of course, overcame the statutory presumption, just as similar testimony overcomes, as we have often held, the common-law presumption that an agent is on his master's business when he drives his master's car. Curry v. Stevenson, 58 App.D.C. 162, 26 F.2d 534; Peabody v. Marlboro Implement Co., 63 App.D.C. 288, 72 F.2d 81; Simon v. City Cab Co., 64 App.D.C. 364, 78 F.2d 506. In each of these cases the positive testimony which overcame the presumption was that of the owner.

Appellees urge, however, that there were various contradictions in appellant's testimony which affect his credibility, and that in the circumstances the jury had a right to reject it. Appellant first stated that Dyson worked only week days, then corrected himself to say the Dyson did occasionally do some work in the junk yard on Sundays; also that appellant at times described himself as manager, superintendent, and owner of the yard. But we think that in neither of these respects is the contradiction sufficiently...

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