44 A.2d 537 (D.C. 1945), 317, Gasque v. Saidman

Docket Nº:317, 318
Citation:44 A.2d 537
Opinion Judge:CAYTON, Associate Judge.
Party Name:GASQUE et al. v. SAIDMAN. SAME v. BODHOLDT
Attorney: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.
Judge Panel:Before CAYTON and HOOD, Associate Judges.
Case Date:November 07, 1945
Court:Court of Appeals of Columbia District

Page 537

44 A.2d 537 (D.C. 1945)

GASQUE et al.

v.

SAIDMAN.

SAME

v.

BODHOLDT

Nos. 317, 318

Court of Appeals of Columbia District.

November 7, 1945

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.

OPINION

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

Page 538

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...

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