Gaither v. Myers

• Citation: 404 F.2d 216
• Decision Date: 10 October 1968
• Docket Number: No. 21247.,21247.
• Parties: Frederick O. GAITHER, Appellant, v. Charles R. MYERS and American Motorist Insurance Co., a corporation, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

404 F.2d 216 (1968)

Frederick O. GAITHER, Appellant, v. Charles R. MYERS and American Motorist Insurance Co., a corporation, Appellees.

No. 21247.

United States Court of Appeals District of Columbia Circuit.

Argued April 16, 1968.

Decided October 10, 1968.

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Mr. John J. O'Neill, Jr., Washington, D. C., for appellant. Mr. Francis X. Quinn, Washington, D. C., also entered an appearance for appellant.

Mr. Ben Cotten, Washington, D. C., with whom Mr. Albert D. Brault, Washington, D. C., was on the brief, for appellees.

Before BURGER, TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

At about 11:25 p. m. on June 22, 1960, plaintiff Myers, a resident of Maryland, was driving on a Maryland road, about five miles from the District of Columbia line, when a speeding automobile, returning to the District, rapidly approached him from the rear, collided with the left rear portion of his car, veered across the highway onto the left shoulder of the road and then back across the highway in front of Mr. Myers, and came to rest in a ditch on the right side of the road about 960 feet from the point of impact. Minutes later the police arrived and upon investigation found that the carelessly driven car had been abandoned by its driver. The ownership of the abandoned auto was traced through its District of Columbia license tags to defendant Gaither. The trial court granted defendant's motion for a directed verdict. The D.C. Court of Appeals reversed and remanded for a new trial.¹ We affirm its order, although we do not agree with all of its opinion.

I. Basis for liability in common law presumption that automobile was operated by defendant's agent and lack of consistent and conclusive proof to the contrary.

The trial court ruled that there was no evidence to support plaintiff's claim that Gaither was driving the car and that a jury could only speculate and conjecture to conclude that he was. The court rejected the plaintiff's apparent position that Gaither and his witness, Mr. Hendricks, were deliberately or through loss of recollection mistaken about the alibi that Hendricks was visiting Gaither at his apartment at the time of the accident. Also rejected was the claim that an agent of Gaither's was driving, the court stating that there was no evidence "whatsoever" to sustain such a finding.²

1. In part I of its opinion of reversal, the D.C. Court of Appeals held that the case was governed by the District of Columbia Financial Responsibility Law, 40 D.C.Code § 424 (1967), on the ground that this statute created an evidentiary presumption applicable to cases brought in our courts. The statute provides, in pertinent part:

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 the D.C. Court of Appeals pointed out, this statute establishes a rebuttable presumption that in case of an accident the owner of an automobile has given consent to the driver; and this presumption will support a jury verdict and judgment for the plaintiff unless the defendant demonstrates nonconsent by "uncontradicted" and "conclusive" evidence.³

The court found that the "proof offered by the owner Gaither contained inconsistencies and self-contradictions raising doubt as to * * * his credibility or that of his witnesses."⁴ We agree that the testimony by and on behalf of defendant Gaither is fairly characterized as so inconsistent and contradictory as to put the credibility of his version of the events in issue.

We have difficulty with that part of the opinion of the D.C. Court of Appeals which indicates that Gaither's liability could be predicated on the presumption in the last clause of the statute, making ownership prima facie evidence of consent. In our view the last clause, containing the presumption of consent, was intended for application in conjunction with the first clause of the statute, which provides a new substantive rule of law that in case a car is operated with consent of the owner, the operator shall be deemed to be the agent of the owner.⁵ But the first clause is by its terms applicable only as to a motor vehicle "operated upon the public highways of the District of Columbia"⁶ and that makes this statute inapplicable here, where at the time of injury the car was being operated in Maryland.⁷

2. The conclusion that the D.C. Financial Responsibility Law does not apply, however, does not settle the matter. The rule at common law, both in Maryland⁸ and the District of Columbia⁹ is that there is a rebuttable presumption that an automobile involved in an accident was being operated at that time by the owner, either personally or through an agent. As to the area not covered by the District's Financial Responsibility Law, plaintiff is entitled to the common law presumptions. And the common law of both jurisdictions directs that plaintiff's case be submitted to the jury, unless evidence rebutting the common law presumption is both "uncontradicted" and "conclusive."¹⁰

It will be noted that, although the common law and the statute are different as to the nature of the presumption,¹¹ they are alike in the requirement as to the kind of proof that must be adduced to overcome the presumption and permit a directed verdict.¹² We see no basis for upsetting the conclusion of the D.C. Court of Appeals that Gaither's testimony, that he was not driving his car — either personally or through an agent — at the time of the accident, was not so consistent and conclusive as to support a directed verdict.

II. Basis for liability in proof that defendant left his keys in the car, in violation of a D.C. motor vehicle regulation.

3. Plaintiff urges an alternative theory that defendant's liability may be premised on the alleged fact that Gaither unlawfully left his keys in his car. We agree that there is support in the evidence for this allegation and that such conduct provides an independent basis for liability.

Article XIV, § 98, of the District of Columbia Traffic and Motor Vehicle Regulations 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 court ruled that this regulation was irrelevant to the liability question since the evidence showed that the ignition had been locked and the key removed (apparently, from the ignition but not from the tailgate of this stationwagon). In Part II of its opinion, the Court of Appeals analyzed the purpose of the regulation. It concluded, correctly in our view, that this regulation is violated even when the driver removes the key from the ignition if he does not remove the key completely from the car. Since the major purpose of the statute is to prevent strangers from tampering with or stealing the car and injuring others, a key left in the tailgate, being in plain view, presents a temptation and danger comparable to, if not greater than, that of a key left in the ignition. Thus, it would undercut the statutory purpose to interpret "removing the key" as meaning removing it only from the ignition and not from the car door, trunk, tailgate, or other places in plain view.¹³

4. The remainder of the opinion of the D.C. Court of Appeals was directed to consideration of whether liability could be premised on appellant's negligence in leaving the keys in his parked and unattended car. Under the law of the District of Columbia, if appellant's stolen car caused the damage in the District, instead of in Maryland, it is clear that, under the facts of our case, appellant's action would render him liable to the victim under a theory of negligence per se. Ross v. Hartman, 78 U.S.App. D.C. 217, 139 F.2d 14, 158 A.L.R. 1370 (1943), cert. denied, 321 U.S. 790, 64 S. Ct. 790, 88 L.Ed. 1080 (1944).¹⁴ In the Ross case the defendant left his keys in his truck after parking it in a public alley. A thief drove the truck away and within two hours ran down the plaintiff. In discussing the former District of Columbia regulation on locking the ignition, the court said:

Since it is a safety measure, its violation was negligence. This negligence created the hazard and thereby brought about the harm which the ordinance was intended to prevent. It was therefore a legal or "proximate" cause of the harm. Both negligence and causation are too clear in this case, we think, for submission to a jury.

The fact that the intermeddler\'s conduct was itself a proximate cause of the harm, and was probably criminal, is immaterial.¹⁵

Footnotes and citations omitted

In the present case the collision occurred at a time and place not substantially removed from the time and place where the owner left the car in the street with the keys. As in the Ross case, this negligence caused the danger and damage that the ordinance intended to prevent, and the negligence is therefore the proximate cause of the mishap under the law of the District of Columbia. In other cases, where the mishap occurs substantially later and distant, the hiatus may tend to negative proximate cause.¹⁶ As stated in Ross, however, the mere fact that a thief stole the car is not, in and of itself, an independent and unforeseeable event that cuts off liability. We do not intimate what would be the result in such cases, but only decide the case at bar on its facts.

It is equally clear that under Maryland law, if the owner had left his keys in his car in Maryland, and the thief had negligently...