Myers v. Gaither

• Decision Date: 10 August 1967
• Docket Number: No. 3937.,3937.
• Citation: 232 A.2d 577
• Parties: Charles R. MYERS and American Motorist Insurance Company, a corporation, Appellants, v. Frederick O. GAITHER, Appellee.
• Court: D.C. Court of Appeals

232 A.2d 577

Charles R. MYERS and American Motorist Insurance Company, a corporation, Appellants, v. Frederick O. GAITHER, Appellee.

No. 3937.

District of Columbia Court of Appeals.

Argued February 20, 1967.

Decided August 10, 1967.

Benjamin W. Cotten, Washington, D.C., with whom Albert D. Brault, Washington, D.C., was on the brief, for appellants.

John J. O'Neill, Jr., Washington, D.C., with whom Robert E. Anderson, Washington, D.C., was on the brief, for appellee.

Before HOOD, Chief Judge, MYERS, Associate Judge, and CAYTON (Chief Judge, Retired).

MYERS, Associate Judge:

While appellant¹ was driving in Maryland, his car was struck from behind by a speeding automobile which then left the highway and ended in a ditch. He regained control of his car, stopped and went to the other vehicle. No one was behind the wheel, but a set of car keys was still in the ignition. A search for the driver by appellant and others was unsuccessful. By tracing ownership through its District of Columbia license plates, the Maryland police ascertained that the errant vehicle belonged to appellee. Several telephone calls to the number listed in appellee's name elicited no response. The District police were then requested to contact appellee, but they, too, were unable to reach him. Although the accident occurred about 11:30 p. m., and ownership of the auto was ascertained within an hour, it was not until about 3:30 a. m., after repeated telephone calls, that the Maryland police succeeded in contacting appellee. Upon being informed of the accident, he indicated that, as far as he was aware, his car was still parked in front of his home where he had left it earlier in the evening. He could give no explanation for its presence in Maryland or its involvement in the accident. When appellee reclaimed his impounded car the next day, he again denied any personal connection with the accident, but admitted that the keys found in the car belonged to him and that he had used them the previous afternoon.

On essentially these facts, at the close of all the testimony, the trial judge directed a verdict in favor of appellee on the ground that "the jury would be left entirely to conjecture and speculation as to who was operating [the] vehicle" at the time of the accident. This appeal ensued.

Appellant advances two alternative theories to establish appellee's liability: first, either that appellee was in fact driving his automobile at the time of the accident or it was being driven by some other person with his knowledge and consent; or, second, that appellee, in violation of the traffic regulations, had left his car keys in the vehicle — that this violation was negligence, which permitted someone to steal the car, and that appellee is therefore liable for the consequences of his omission of care.

I

The first theory predicates liability upon a presumption that the operator of a motor vehicle was driving it with the owner's consent and is therefore deemed to be the agent of the owner. The presumption has been imposed by case law in Maryland. In Wagner v. Page, 179 Md. 465, 20 A.2d 164, 166 (1941), it was stated that "the operator of a motor vehicle is prima facie the agent and servant of its owner, but the presumption is a rebuttable one." See also cases collected at 20 A.2d at 166. In the District of Columbia this presumption is a statutory one. D.C.Code § 40-424 (1961) provides that

Whenever any motor vehicle * * * shall be operated upon the public highways of the District of Columbia by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed to be the agent of the owner of such motor vehicle and the proof of the ownership of said motor vehicle shall be prima facie evidence that such person operated said motor vehicle with the consent of the owner.

As a rule of evidence pertaining to the remedy, we apply the presumption as stated in § 40-424 and construed in the cases interpreting that section.²

This presumption may be overcome by the uncontradicted denial by the owner. Rosenberg v. Murray, 73 App.D.C. 67, 116 F.2d 552 (1940). In such a case, a directed verdict is proper. However, in Hiscox v. Jackson, 75 U.S.App.D.C. 293, 294, 127 F.2d 160, 161 (1942), it was held that where the infirmities in the owner's own evidence contradict his denials, a directed verdict is no longer proper. To entitle the defendant to a directed verdict there must be "evidence which destroys all inferences and presumptions supporting plaintiff and which raises no doubts against defendant." In reversing a directed verdict for the owner, the court found that there were "inconsistencies and self-contradictions * * * [necessarily leaving] some doubts as to the absolute credibility of the witnesses." A jury determination was therefore in order. See also Conrad v. Porter, D.C.Mun.App., 79 A.2d 777 (1951), aff'd, 90 U.S.App.D.C. 423, 196 F.2d 240 (1952); Simon v. Dew, D.C.Mun.App., 91 A.2d 214 (1952).

Appellant asserts there were inconsistencies and contradictions in appellee's own evidence which entitled him to have his case submitted to the jury. He points out, for example, that although appellee testified he had been home all evening, had retired shortly before midnight, and normally had no difficulty hearing the ring of the telephone, numerous phone calls to his residence over a three-hour period immediately after the accident were not answered. The jury, appellant contends, may well have concluded that appellee was not at home until nearly 3:30 a. m. — that he was therefore either driving his automobile at the time of the accident, or at least was untruthful in his account of his whereabouts. Appellant also asks us to note that in a deposition taken more than four years after the accident appellee could not recall his activities on the night of the accident. However, at trial appellee was precise in his recollection that he had been visited about 10 p. m. by a Mr. Hendricks one of his employees, and that they had watched television together until after eleven o'clock. Mr. Hendricks similarly testified that he had visited appellee and had not left until about 11:30 p. m. Appellant maintains that such a discrepancy between the deposition and the testimony at trial could reasonably be viewed by a jury as a deliberate fabrication — or, at the least, as indicative of a faulty memory. Appellant further argues that a jury might well have believed that appellee was trying to buttress his story that his auto was stolen when he testified that garden tools worth about $500, which had been in the back of his car, were missing when he went to reclaim it the following day. In varying degrees, this was contradicted by appellant, the officer, and even Hendricks, appellee's own witness. These and other inconsistencies, appellant reasons, precluded a directed verdict in favor of appellee and required the submission of the case to the jury.

Appellee counters appellant's argument by maintaining that his evidence was not inherently improbable or impeached and should therefore control. Stone v. Stone, 78 U.S.App.D.C. 5, 136 F.2d 761 (1943); Perlman v. Chal-Bro., Inc., D.C. Mun.App., 43 A.2d 755 (1945). Whether impeachment, once attempted, is successful is essentially a question for the jury, Baltimore & 0. R. R. v. Corbin, 73 App.D.C. 124, 118 F.2d 9 (1940), and whether appellee's evidence is uncontradicted as a matter of law must also be determined from inferences contrary to appellee's position but reasonable in the light of other evidence. Bruni v. Dulles, 121 F.Supp. 601, 603 (D. D.C.1954), rev'd on other grounds, 98 U.S. App.D.C. 358, 235 F.2d 855 (1956).

The factual possibilities reasonably inferred from appellant's evidence, combined with minor contradictions and possible impeachment of appellee's testimony, bring this case within Farrall v. Ellis, D.C.Mun.App., 157 A.2d 127 (1960). There the owner testified he had lent his car to his brother from whom it was stolen. We reversed a directed verdict for the owner, holding that if the proof offered by the owner contained inconsistencies and self-contradictions raising doubt as to the owner's credibility or that of his witnesses, the issue of permissive use of the automobile was one for the jury. We characterized the explanation of the owner as perhaps "absolutely true, but we [did] not think it [possessed] such `absolute credibility' that a jury would be bound as a matter of law to accept it." For the same reasons, we believe appellant in the present case was entitled to have a jury determination of his claims.

II

At trial a Maryland police officer testified that appellee, when he reclaimed his car, stated he had locked the ignition and the doors to his station wagon but must have left the keys in the tailgate, which enabled some unauthorized person to take the car. Appellee denied any recollection of having made this statement.

On the basis of the admission attributed to appellee, that he must have left the keys in the tailgate, appellant predicates his second theory of appellee's liability — his violation of Art. XIV, § 98, of the Traffic and Motor Vehicle Regulations of the District of Columbia which provides:

No person driving, or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway.

The trial judge refused to admit the regulation on the ground that it was not supported by the evidence and that any conclusion reached as a result of considering the facts in the light of this regulation would be speculative. On the contrary, given the presence of the key in the car if appellee's evidence concerning his whereabouts should have been believed by the jury, the explanation offered by appellee, as testified to by the...