Gasque v. Saidman. Same

• Decision Date: 07 November 1945
• Docket Number: Nos. 317, 318.,s. 317, 318.
• Citation: 44 A.2d 537
• Parties: GASQUE et al. v. SAIDMAN. SAME v. BODHOLDT.
• Court: D.C. Court of Appeals

44 A.2d 537

GASQUE et al.

v.SAIDMAN.

SAME

v.BODHOLDT.

Nos. 317, 318.

Municipal Court of Appeals for the District of Columbia.

Nov. 7, 1945.

Appeals from the Municipal Court for the District of Columbia, Civil Division.

Separate actions by Rose E. Saidman and by Edward N. Bodholdt against John R. Gasque and Marshall L. Logan for property damages resulting from automobile collision, which actions were consolidated for trial. From judgments for plaintiffs, the defendants appeal.

Judgment reversed with instructions to award a new trial to appellant John R. Gasque and judgment affirmed as to appellant Marshall L. Logan.

Walter M. Bartian and Joseph D. Bulman, both of Washington, D. C., for appellants.

Harry Saidman, of Washington, D. C., for appellee Saidman.

Karl Kindleberger, of Washington, D. C. for appellee Bodholdt.

Before CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

In the middle of the night the automobiles of the two plaintiffs which were parked at the curb were struck and damaged by a taxicab driven by one Blakely. The cab was titled in the name of appellant John R. Gasque, but had by him been transferred (by an instrument we shall later describe) to appellant Marshall L. Logan. Plaintiff Saidman sued Gasque, Logan and Blakely; but process was not served upon Blakely and so she went to trial against the other two defendants. Plaintiff Bodholdt sued only Gasque and Logan. The two cases were consolidated for trial, which was by jury, and a verdict resulted in favor of both plaintiffs against both defendants. Defendants appeal and present three principal questions for review.

1. Liability of defendant Gasque

The record title of the taxicab was in the name of Gasque. In his name also were the Office of Defense Transportation certificate, tire ration application, gas allotment papers and the Public Utilities Commission certificate. His name also appeared on the outside of the cab; and with his name there was the inscription ‘Equity No. 3,’ but as to this latter legend no explanation was offered. Those circumstances standing alone and unexplained would give rise to the presumption that the vehicle was at the time of the accident being operated by an agent of Gasque and with his consent. That was the common law rule, ¹ and it is clearly the rule today, under our Financial Responsibility Act. Code 1940, § 40-403; Rosenberg v. Murray, 73 App.D.C. 67, 116 F.2d 552; Mason v. Automobile 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 consent. ² He did more than that. He proved that he was not even the owner of the cab, within the meaning of the statute. He produced an agreement of conditional sale by which he had some months before transferred the taxicab to Logan for a consideration of $2,000. The agreement described Gasque as seller and Logan as buyer; it provided for weekly installment payments and reserved the legal title in Gasque pending payment of the full purchase price, with the usual right of repossession in case of default. The uncontradicted testimony was that Gasque did not know Blakely and had never given him permission to operate the taxicab. Thus the question is whether Gasque was entitled to a directed verdict.

He had divested himself of possession and entrusted it to Logan. By the written agreement he had retained title solely for the purpose of security. The other attributes of ownership such as possession, use, and control belonged to Logan; ³ Gasque had retained nothing more than a lien for the unpaid purchase price. ⁴ As we see it, liability against Gasque cannot be fashioned from the single fact that he owned the naked legal title to the taxicab. The matter has been settled in this jurisdiction by Mason v. Automobile Finance Co., 73 App.D.C. 284, 121 F.2d 32, 35, where it was held that one who is a mere chattel mortgagee is not an ‘owner,’ for the purposes of the statute. Said the Court, speaking through Justice Rutledge: ‘Something more than a lien on the property, * * * is necessary. In the absence of some definite statutory criterion of ownership, we think the purpose of the statute was to place the liability upon the person in a position immediately to allow or prevent the use of the vehicle and to do so by giving a lawful and effective consent or prohibition to its operation by others. The object was to control the giving of consent to irresponsible drivers by the one having that power rather than to impose liability upon one having a naked legal title with no immediate right of control.' ⁵ (Emphasis supplied).

The plaintiffs are not helped on this appeal by the fact that Gasque failed to have his name removed from the vehicle, or that the words ‘Equity No. 3’ appeared with his name. There was no testimony that Gasque was operating a taxicab association or that Logan was a member of such association or that Logan was operating the vehicle for anyone except himself. Gasque had not sold or otherwise given Logan the right to use any particular trade name, insignia, or special coloring. The transaction was in all respects merely a transfer of the license and of the vehicle itself, with no additional benefits or privileges. In that respect this case is quite different from Callas v. Independent Taxi Owners' Ass'n, 62 App.D.C. 212, 66 F.2d 192, 193, where plaintiff's theory was that defendant was an incorporated association controlling a large fleet of cabs which it was allegedly operating through its members or associates; holding itself out as a public service corporation; and receiving from its members ‘thousands of dollars [of revenue] per month’ for the use of its trade name, and for other membership privileges.

Nor was estoppel available to the plaintiffs. They were not passengers and had no contractual relationship either with Gasque or with Logan. As to them there had been no holding out of an ‘illusion of responsibility,’ and no deception or misrepresentation.

Compare Rhone v. Try Me Cab Co., 62 App.D.C. 201, 65 F.2d 834. Looking at all the circumstances, we are forced to conclude that Gasque had as a matter of law clearly overcome the statutory presumptions of ownership and agency, that there were no facts or inferences on which the jury could properly have based liability, and that it was error to have submitted the question of his liability to the jury.

We must also hold that it was error to submit the case to the jury on the theory of joint enterprise between Gasque and Logan, for there was no evidence to support such theory. To constitute joint enterprise there must be not only joint or community interest, but also an equal right, express or implied, to direct and control the management and movement of the car. ⁶ Here the right of control and management was in Logan, not Gasque.

2. Liability of defendant Logan

This defendant, as we have just said, was the person who had dominion and control of the taxicab. Whether it be said that he was buying or renting it, is of little or no consequence in determining his liability in this case. He was physically present in the back seat at the time of the collisions. He testified that he had been asleep, had not given Blakely permission to drive, and did not know that Blakely was driving until just before the crash. He said he had been in a restaurant and had consumed one beer with Blakely just before he got into the back seat, and that this was about 9:30 in the evening. But there was other...