Lancaster v. Canuel

• Decision Date: 22 August 1963
• Docket Number: No. 3238.,3238.
• Citation: 193 A.2d 555
• Parties: James P. LANCASTER and Ruth Y. Lancaster, Appellants, v. Raymond J. CANUEL and Hunting Towers Pharmacy, Inc., a corporation, Appellees.
• Court: D.C. Court of Appeals

Page 555

193 A.2d 555

James P. LANCASTER and Ruth Y. Lancaster, Appellants, v. Raymond J. CANUEL and Hunting Towers Pharmacy, Inc., a corporation, Appellees.

No. 3238.

District of Columbia Court of Appeals.

Argued July 8, 1963.

Decided August 22, 1963.

James T. Barbour, Jr., Washington, D. C., for appellants.

Louis M. Kaplan, Washington, D. C., with whom Lawrence E. Carr, Jr., Washington, D. C., was on the brief, for appellees.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge.

This is an appeal by the Lancasters, husband and wife, from a judgment non, obstante veredicto in favor of appellees Canuel and Hunting Towers Pharmacy, Inc., a corporation, after a jury trial in which the Lancasters as plaintiffs secured a verdict for damages arising out of a motor accident involving their car and a vehicle owned by Canuel and driven by one Vernon Cooke, an employee of the pharmacy.

The Lancasters were residents of the District of Columbia. The collision took place at an intersection in the District about 11:30 p. m. The corporate appellee operated a pharmacy in Virginia where Canuel, owner of the automobile, also lived. Defendant Cooke was personally served in the District; the two nonresident defendants were served under the provisions of the Motor Vehicle Safety Responsibility Act of the District of Columbia, § 40-423, D.C.Code, 1961¹ Appellee pharmacy, after allowing a default to be entered against it for failure to file an answer, duly moved to set aside the default, which was granted. At pre-trial, by reason of the minority of defendant Cooke, a guardian ad litem was appointed for him. GS Rule 17(b).

After completion of all testimony and submission of the case to a jury under instructions, to which no objection was noted, a verdict awarding damages to both Lancasters was returned against all three defendants. Upon motion filed only by appellees Carmel and the pharmacy, judgments were entered by the trial court in their favor, notwithstanding the verdict, on the ground that "the evidence is insufficient as a matter of law to warrant a verdict for the plaintiffs either on the issue of express or implied consent or negligence." At the same time, the court ruled that "in event this action is reversed upon appeal, a new trial is granted," presumably as to these two defendants.²

Appellants contend that the trial court erred in granting (1) the motion of appellee pharmacy to vacate the default against it; and (2) the motion of appellees Cannel and the pharmacy for judgment n. o. v.³

We are satisfied that the first question becomes moot after completion of trial in favor of appellants. In any event, the power of the trial judge under GS Rule 55(c) to set aside entry of default at any time prior to judgment is restricted only by the requirements that it be exercised within a reasonable time and for good cause shown in the light of the circumstances of each case.⁴ We cannot say that the motion here was not filed within a reasonable time after default entry or that good cause was not shown. We find no abuse in setting aside the default.

The trial court granted judgment for appellees Carmel and the pharmacy, notwithstanding the jury's verdict against them, after having denied their motion for a directed verdict at the close of all the evidence and thereby reserved for a later determination the legal questions raised by such motion.⁵ Whether this action was proper requires an examination of the testimony to determine the sufficiency of the evidence.

Section 40-424, D.C.Code, 1961, provides that whenever any motor vehicle shall be operated in the District by any person other than the owner, with the consent of the owner, express or implied, there is a presumption in case of accident that the driver is the owner's agent and proof of ownership of the vehicle shall be prima facie evidence that the vehicle was being driven with the owner's consent. Rosenberg v. Murray, 73 App.D.C. 67, 116 F.2d 552; District of Columbia v. Abramson, D.C.Mun.App., 148 A.2d 578; Milstead v. District of Columbia, D.C.Mun.App., 91 A.2d 93; Conrad v. Porter, D.C.Mun.App. 79 A.2d 777, aff'd 90 U.S.App.D.C. 423, 196 F.2d 240; Schwartzbach v. Thompson, D.C.Mun.App., 33 A.2d 624. The effect of this provision is to impose upon the owner the affirmative duty of proving that his car was not being driven with his consent. The presumption may be rebutted by the uncontradicted denial by the owner that the vehicle was being operated with his consent. Hiscox v. Jackson, 75 U.S.App.D.C. 293, 127 F.2d 160; Conrad v. Porter, supra.

Appellants concede that no express permission to the driver Cooke by either Canuel or the pharmacy to use the automobile on the night of the accident was shown, but contend there were sufficient facts from which the jury could have reasonably inferred an implied consent for that purpose or negligence in hiring Cooke and in the manner in which the car and keys were made available to him.

In the present case, we are primarily confronted with the question of "ownership" under the statute relied upon by appellants. "`Owner' and `ownership' for purposes of the Act are not defined. Their meaning is left for judicial determination and this should be made so as to give effect to the objects and purposes of the statute."⁶ In a prior case in this jurisdiction, a chattel mortgagee was held not to he an owner and did not become so by default of the mortgagor.⁷ In the present case Canuel at the time of the accident was unquestionably the owner of the car; and we are convinced that lending the car to the pharmacy as a matter of courtesy for a limited purpose did not make the pharmacy a co-owner within the intent and purpose of the statute.

There is no question that Cannel as owner was aware his car would be driven in making small deliveries by the pharmacy employees, one of whom was Cooke. However, he did not consent to its operation after hours by Cooke for personal purposes, and his testimony to that effect was uncontradicted by any other witness. If there was a prima facie showing of implied consent under the statute, the positive statements of Canuel that he had never given Cooke the right to drive the car after business hours for any purpose of his own and that he had never known of Cooke doing so completely destroyed any...