33 A.2d 624 (D.C. 1943), 97, Schwartzbach v. Thompson

Docket Nº97
Citation33 A.2d 624
Opinion JudgeCAYTON, Associate Judge.
Party NameSCHWARTZBACH v. THOMPSON
AttorneyF. Bryan Potter, of Washington, D. C., for appellant. Russell Morris, of Washington, D. C., for appellee.
Judge PanelBefore RICHARDSON, Chief Judge, an CAYTON and HOOD, Associate Judges.
Case DateAugust 16, 1943
CourtCourt of Appeals of Columbia District

Page 624

33 A.2d 624 (D.C. 1943)

SCHWARTZBACH

v.

THOMPSON

No. 97

Court of Appeals of Columbia District.

August 16, 1943

F. Bryan Potter, of Washington, D. C., for appellant.

Russell Morris, of Washington, D. C., for appellee.

Before RICHARDSON, Chief Judge, an CAYTON and HOOD, Associate Judges.

OPINION

CAYTON, Associate Judge.

The trial judge predicated his finding and judgment on a memorandum opinion which he filed in the case and which has

Page 625

proven helpful on this appeal. It has by stipulation of counsel been designated as the statement on appeal.

On the night in question plaintiff's automobile was lawfully parked for the night, and while so parked was run into by an automobile owned by defendant and operated by one Gladys Benford.

Plaintiff depended upon that part of the Financial Responsibility Act for this District, [1] which provides in part: 'Whenever any motor vehicle * * * shall be operated * * * 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.'

To overcome the presumption raised by the statute defendant testified that on the evening in question he had left his car locked on a parking lot near his home; that he had not authorized anyone to drive his car on that night; that he knew Miss Benford and that she used his apartment as a place to get her mail; that because of this collision she had been convicted of driving without a permit but that he had not brought any charge against her for using his car without permission; that she was or had been a narcotics addict; at the time of the collision she was on probation, and at the time of the trial she was a prisoner at Occoquan; that she knew where he parked his automobile; that on the night in question at about 11 o'clock he was in bed and she came to the door of his apartment and rang or knocked; that he left his bed and admitted her and that she said she wanted to use the telephone; that he gave her permission to use the telephone and went back to bed and turned over and went to sleep; that the key to his automobile was in a pocket of his trousers which were hanging over a chair near the telephone; that he assumed she had stolen the key out of his pocket; that he also knew Miss Benford's mother; and that on one or more occasions Miss Benford had driven his automobile while he was in it.

Because of the evasive nature of many of defendant's replies the trial judge caused Miss Benford to be subpoenaed and brought from the District workhouse to give testimony, the important parts of which were as follows: On the night in question she was 'pretty drunk;' she had another girl with her; she went to defendant's apartment alone and he was sitting in his apartment reading. After an interval of about a half an hour, during which they discussed her troubles, he went to bed. He told her she could stay if she wanted to. She took his automobile key wanted to. She took his automobile key automobile from the parking lot and drove it and was...

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  • 67 F.R.D. 486 (D.D.C. 1975), C. A. 74-73, Miller v. United States
    • United States
    • Federal Cases United States District Courts District of Columbia
    • April 3, 1975
    ...240 (1953); Simon v. Dew, 91 A.2d 214 (D.C.Mun.Ct.App.1952); Rice v. Simmons, 53 A.2d 587 (D.C.Mun.Ct.App.1947); Schwartzbach v. Thompson, 33 A.2d 624 (D.C.Mun.Ct.App.1943); Hiscox v. Jackson, 75 U.S.App.D.C. 293, 127 F.2d 160 (1942); Rosenberg v. Murray, 73 App.D.C. 67, 116 F.2d 552 (1940)......
  • 317 F.2d 151 (D.C. Cir. 1963), 17098, Machanic v. Storey
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • March 21, 1963
    ...a prima facie case of negligence is established.' (Citing Bonbrest v. Lewis, 54 A.2d 751 (D.C.Mun.App.1947); Schwartzbach v. Thompson, 33 A.2d 624 [6] Cf. the statement of Judge Parker in Garrison v. United States, 62 F.2d 41, 42 (4th Cir. 1932): '* * * Where there is substantial evidence i......
  • 44 A.2d 537 (D.C. 1945), 317, Gasque v. Saidman
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 7, 1945
    ...Finance Co., 73 App.D.C. 284, 121 F.2d 32; Hiscox v. Jackson, 75 U.S.App.D.C. 293, 127 F.2d 160; Schwartzbach v. Thompson, D.C.Mun.App., 33 A.2d 624. The effect of the rule in this case was to shift the burden of proof and require Gasque to show that the car was not being operated with his ......
  • 193 A.2d 555 (D.C. 1963), 3238, Lancaster v. Canuel
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 22, 1963
    ...93; Conrad v. Porter, D.C.Mun.App., 79 A.2d 777, Page 558 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......
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15 cases
  • 67 F.R.D. 486 (D.D.C. 1975), C. A. 74-73, Miller v. United States
    • United States
    • Federal Cases United States District Courts District of Columbia
    • April 3, 1975
    ...240 (1953); Simon v. Dew, 91 A.2d 214 (D.C.Mun.Ct.App.1952); Rice v. Simmons, 53 A.2d 587 (D.C.Mun.Ct.App.1947); Schwartzbach v. Thompson, 33 A.2d 624 (D.C.Mun.Ct.App.1943); Hiscox v. Jackson, 75 U.S.App.D.C. 293, 127 F.2d 160 (1942); Rosenberg v. Murray, 73 App.D.C. 67, 116 F.2d 552 (1940)......
  • 317 F.2d 151 (D.C. Cir. 1963), 17098, Machanic v. Storey
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • March 21, 1963
    ...a prima facie case of negligence is established.' (Citing Bonbrest v. Lewis, 54 A.2d 751 (D.C.Mun.App.1947); Schwartzbach v. Thompson, 33 A.2d 624 [6] Cf. the statement of Judge Parker in Garrison v. United States, 62 F.2d 41, 42 (4th Cir. 1932): '* * * Where there is substantial evidence i......
  • 44 A.2d 537 (D.C. 1945), 317, Gasque v. Saidman
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 7, 1945
    ...Finance Co., 73 App.D.C. 284, 121 F.2d 32; Hiscox v. Jackson, 75 U.S.App.D.C. 293, 127 F.2d 160; Schwartzbach v. Thompson, D.C.Mun.App., 33 A.2d 624. The effect of the rule in this case was to shift the burden of proof and require Gasque to show that the car was not being operated with his ......
  • 193 A.2d 555 (D.C. 1963), 3238, Lancaster v. Canuel
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 22, 1963
    ...93; Conrad v. Porter, D.C.Mun.App., 79 A.2d 777, Page 558 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......
  • Request a trial to view additional results