78 F.2d 506 (D.D.C. 1935), 6265, Simon v. City Cab Co.

Docket Nº6265.
Citation78 F.2d 506
Party NameSIMON v. CITY CAB CO., Ine.
Case DateMay 13, 1935
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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78 F.2d 506 (D.D.C. 1935)

SIMON

v.

CITY CAB CO., Ine.

No. 6265.

United States Court of Appeals, District of Columbia.

May 13, 1935

Argued Jan. 8, 1935.

Rehearing Denied June 11, 1935.

Appeal from the Supreme Court of the District of Columbia.

Louis Ottenberg, George D. Horning, Jr., and H. M. Ammerman, all of Washington, D. C., for appellant.

Alwin L. Newmyer and David G. Bress, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

VAN ORSDEL, Associate Justice.

This action was brought in the Supreme Court of the District of Columbia by appellant, plaintiff below, against defendant, City Cab Company, for damages sustained by the plaintiff through the alleged negligence of the driver of one of the defendant's cabs. At the conclusion of all the evidence the court, on motion of defendant, directed the jury to return a verdict in its favor. From the judgment, this appeal was taken.

It appears that one James Hall Semmes, Sr., had been employed by the defendant company in June, 1932, to operate the taxicab in question. He paid defendant $3.25 daily, whether he did any business or not. He was entitled to retain all he earned above that amount. He was permitted to keep the cab at his place of residence in Tacoma Park, Md., but was required to report to defendant each day. When he returned home in the evening, it was his custom to leave the cab standing in the driveway beside his house, and to leave the keys in the switch of the car.

His son, James Hall Semmes, Jr., a licensed hacker, occasionally drove the cab at night, sometimes with and sometimes without his father's permission. The son was driving the car on the night of the accident, having taken it without his father's permission, and, after discharging a passenger, was returning home about half past two on the morning of October 4, 1932, when the accident occurred.

Plaintiff belonged to one of the fire companies, and was in attendance at a fire on Tenth street in this city. He was engaged in replacing the hose in a fire truck when Semmes, Jr., driving the taxicab, ran into him, crushing his leg between the taxicab and the hose wagon, so severely injuring his leg as to require its amputation.

On the issue of negligence, there is ample evidence to take the case to the jury, but the court directed a verdict on the ground that Semmes, Jr., was not the agent of the defendant for the operation of the taxicab, and that the company was therefore not liable. This raises the single question necessary for the determination of this case. The uncontradicted evidence discloses that Semmes, Sr., under his contract with the defendant to

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operate the taxicab, was without authority to permit any one else to use or operate the cab for any purpose whatever. We think, therefore, that whether or not he permitted his son to drive the cab on the night of the accident is immaterial. In neither event could Semmes, Sr., to this extent extend the scope of his agency without the consent of his principal. This elementary rule of agency we think is decisive of this case. It was not within the power of Semmes, Sr., to permit any one else to use the cab, either in the course of the company's business or otherwise, without the consent of the company; and if Semmes, Jr., on the night in question was using the cab without the permission of his father, the situation is not different from a case where a car has been stolen and an accident occurs when it is operated by the thief. Under no circumstances in such a case could the owner of the car be held liable.

Counsel for plaintiff invoke the rule of law that where the plaintiff is injured by a taxicab bearing the name of the owner, the presumption arises that the vehicle is in the custody and on the business of the defendant, and that the driver is its agent and acting within the scope of his employment. This presumption, if standing alone, is sufficient to establish a prima facie case, and if uncontradicted, to carry the case to the jury. In Callas v. Independent Taxi Owners' Association, 62 App. D. C. 212, 66 F.2d 192, 194, the taxicab bore the peculiar colors and trade-name of the defendant company, and it was held that this was sufficient to raise the presumption that it was 'in the custody and on the business of the person whose name it bore.' The president of the company testified that it did not own a cab and intimated that it was not in the cab business, and there was no evidence to show that the operator of the cab was or was not a member, servant, or agent of the company. It was there held that these facts were not sufficient to overcome the presumption to the extent of authorizing the court to take the case from the jury. On this point the court said: 'Whether the effect of this presumption was overcome by the testimony of the president of the company that it did not own a cab, and his intimations that it was not in the cab business was a question of fact for the jury, and consequently its decision as a question of law by the court was error.' The court, in support of this holding, quoted with approval from Holzheimer et ux. v. Lit Brothers, 262 Pa. 150, 152, 105 A. 73, as follows: 'So far as the liability of the defendant was concerned, the plaintiffs' case rested wholly upon a presumption. There was no direct evidence as to who was the owner of the truck that inflicted the injury, nor as to who was in charge of it when the collision occurred. There was evidence, however, that the truck bore the name of the defendant company. This was sufficient to establish, not only a prima facies that the defendants were the owners of the truck, but also that it was then in charge of their servant or employee. This was presumptive evidence, and, as has frequently been ruled, was quite sufficient to carry the case to the jury.'

The instant case, however, can be clearly differentiated from the Callas Case. The facts in the present case are all disclosed, leaving no room for reliance upon a presumption. Whatever presumption arose was overcome by uncontradicted proof. Where that situation clearly arises, a motion for a directed verdict should be granted. If, however, the evidence is contradictory, or reasonably subject to contradictory interpretations, as was held in the Callas Case, the question of liability then is one for the jury.

In the instant case, defendant admits the ownership of the taxicab, admits the employment and agency of Semmes, Sr., and proved conclusively, at the time of the accident, the car was in the possession of Semmes, Jr., a total stranger to defendant, who possessed no authority, express or implied, to operate the car for the defendant or to use it in carrying on its business; and whose prior and instant use of the cab was without its knowledge or consent. Indeed, these facts stand uncontradicted, and to submit the issue to the jury of whether or not they are sufficient to overcome the presumption establishing a prima facie case, would be to submit the rights of the defendant to the speculation and sympathy of the jury.

It is difficult to conceive of a case where the owner of an automobile, used privately, for business purposes, or publicly as a taxicab, could be held liable for an accident caused by the car while operated by a person unknown to the owner

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and without his express or implied permission. Clear it is, that the agent of the owner, in whatever capacity he is charged with the use or operation of the car, cannot without the knowledge or consent of the owner transmit his agency to a person unknown to the owner, and thereby impose liability on the owner for the reckless or negligent operation of the car.

Nor does it follow that the owner is always liable for an accident occurring through the negligent operation of his car by his servant, agent, or employee. In Peabody v. Marlboro Implement Company, 63 App. D. C. 288, 72 F.2d 81, 82 (certiorari denied by the Supreme Court, 293 U.S. 601, 55 S.Ct. 117, 118, 79 L.Ed. 693), defendant company admitted the ownership of the automobile but denied that the operator thereof, at the time of the accident, was operating it as the agent or employee of the defendant. The testimony disclosed that the driver of the car was in the general employ of defendant company, and was in custody and control of the car and permitted to use it in the business of the company, and when it was not in such use to keep it in his own garage.

The uncontradicted testimony showed that at the time of the accident the agent was using the car on a personal mission, not directly or indirectly connected with the company's business, or with its knowledge or consent. The court, speaking through Mr. Chief Justice Martin, distinguishing the Callas Case, and, holding that the verdict had been directed properly for the defendant, said: 'It is true that in Callas v. Independent Taxi Owners' Association, 62 App. D. C. 212, 66 F.2d 192, we held that a car operated as a taxicab at the time of an accident, bearing the peculiar colors and trade name of the defendant company, was legally presumed to be in the custody and on the business of the company whose name it bore. But in Curry v. Stevenson, 58 App. D. C. 162, 26 F.2d 534, we held that where the prima facie inference of possession of the automobile at the time of the accident, arising from the fact of ownerhsip, is overcome by uncontradicted proof that in fact the automobile was not in possession of the owner or his servant or agent, the question is one for the court, and not for the jury. We think that this rule is equally applicable where the issue relates to the liability of an owner for the alleged negligence of an agent in the operation of a car.'

Special stress is placed by counsel for plaintiff on the case of Schweinhaut v. Flaherty, 60 App. D. C. 151, 49 F.2d 533,...

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