Bill's Auto Rental v. Bonded Taxi Co., 874.

• Decision Date: 22 March 1950
• Docket Number: No. 874.,No. 875.,874.,875.
• Citation: 72 A.2d 254
• Parties: BILL'S AUTO RENTAL, Inc. v. BONDED TAXI CO., Inc. et al. BONDED TAXI CO., Inc. et al. v. BILL'S AUTO RENTAL, Inc.
• Court: D.C. Court of Appeals

Page 254

72 A.2d 254

BILL'S AUTO RENTAL, Inc. v. BONDED TAXI CO., Inc. et al.

BONDED TAXI CO., Inc. et al. v. BILL'S AUTO RENTAL, Inc.

No. 874.

No. 875.

Municipal Court of Appeals for the District of Columbia.

Argued January 25, 1950.

Decided March 22, 1950.

Rehearing Denied April 18, 1950.

Daniel J. Andersen, Washington, D. C., with whom R. Logan Hollowell, Washington, D. C., was on the the brief, for Bonded Taxi Co., Inc.

John W. Cragun, Washington, D. C., for Ramon Laboy Lopez.

Sandolphra Robinson, Washington, D. C., with whom Louis Sirico, Washington, D. C., was on the brief, for Joseph S. Lancaster.

William E. Stewart, Jr., Washington, D. C., with whom Richard W. Galiher and William H. Clarke, Washington, D. C., were on the brief, for Bill's Auto Rental, Inc.

Aubrey E. Robinson, Jr., Washington, D. C., with whom Belford V. Lawson, Jr., Washington, D. C., was on the brief, for James Willis Lancaster.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

These appeals arise from actions based on an automobile collision between a truck and a taxicab.

It appears that the following took place on the date of the collision. About 5 o'clock in the afternoon Joseph Lancaster was driving eastward along S street, N.W. in a taxicab owned by Bonded Taxi Company. With him were three passengers, including his nephew James Lancaster, who became a plaintiff below. He was apparently driving within the speed limit but did not stop at the intersection of 12th Street as S Street is a through street at that point with stop signs controlling north and southbound traffic on 12th Street. He testified that he slowed down, "as I always do."

At the same time a truck owned by Bill's Auto Rental and operated by one Oliver was proceeding south on 12th Street, N.W. and approaching S Street. With the driver was a passenger Ramon Lopez. The evidence was conflicting as to whether the truck stopped in compliance with the stop sign. Though the truck, like the taxicab, was apparently being driven within the speed limit, neither of the drivers (nor the passengers) apparently saw the other vehicle until too late. The collision was a violent one, resulting in extensive personal injuries and property damage.

In the court below there were three actions plus one cross claim, involving five separate parties. In the first case (Municipal Court No. A 25-327), Bonded Taxi Co., sued Bill's Auto Rental.¹ In the second case (Municipal Court No. A 25-579), the truck passenger, Ramon Lopez, sued Bonded Taxi Co., its driver Joseph Lancaster, and Bill's Auto Rental. In the same case Joseph Lancaster filed a cross claim against Bill's Auto Rental. These two cases were on motion of James Lancaster, all parties consenting, ordered consolidated for trial. They were tried by a jury and in the first case a verdict was returned in favor of defendant Bill's Auto Rental. Bonded Taxi Co. appeals from that decision. In the second case the jury returned a verdict for all three defendants on the original complaint and for the cross defendant Bill's Auto Rental on the cross claim of Joseph Lancaster. In that case an appeal was taken by Lopez on his original claim and by Joseph Lancaster on his cross claim. The third case (Municipal Court No. A27-413) was filed by the taxicab passenger, James Lancaster, against Bonded Taxi Co., Joseph Lancaster, and Bill's Auto Rental. This case was consolidated with and tried together with the other two cases, but by the judge without a jury. The finding of the judge was in favor of plaintiff James Lancaster against Bill's Auto Rental only and in favor of the other two defendants, Bonded Taxi Co., and Joseph Lancaster. In that case the appeal was noted by Bill's Auto Rental.

Bill's Auto Rental defended on the ground that its truck was being driven without its consent or authorization. It also alleged contributory negligence by driver Lancaster and by the taxi company in hiring Lancaster.

In support of its denial of liability William Jaeger, the president of Bill's Auto Rental, testified as to the rental agreement made with Oliver about 10 a. m. on the day of the collision. He said that because he knew Oliver he did not demand a security deposit or require a written agreement; that he rented the truck verbally at the rate of 60¢ per hour plus 7¢ a mile; that the truck was to be used to go to Virginia where Oliver hoped to sell some watches; that it was rented on the condition that Oliver return it before 12 o'clock noon. This was because Jaeger wanted it for his personal use after then and because it was Sunday, a day on which he closed his office at noon. He testified that he instructed Oliver to that effect and that Oliver "promised faithfully he would have it back before twelve o'clock."

Jaeger also testified that the truck was not returned by noon, that he waited in his office until 1:30 p. m., and that before leaving he wrote a note instructing Oliver to leave it on his return at a nearby gas station. He inserted the note under the mail box of Oliver's jewelry store two doors away. He then gave instructions to a gas station attendant across the street about taking the truck into custody. These instructions were to have the driver park the truck on the lot and to take the keys from him.

The gas station attendant gave partial corroboration to this testimony. He said that about 2 p. m. Oliver returned to the vicinity and parked the truck on the street. The attendant saw him go to his store; then he came into the gas station carrying a piece of paper which was presumably the note left for him by Jaeger. The attendant did not read the note but did repeat the instructions given him, telling Oliver that he was to leave the truck with him and that he was "definitely not to use it." Nevertheless, while he was busy with a customer, Oliver drove off in the truck.

The next Jaeger knew of the truck was when the accident, which happened at 5 p. m. or soon thereafter, was reported to him over the phone. He admitted that he billed Oliver for the use of the truck up until the time of the accident, even though his consent to its use had expired earlier. He also testified that he had never received any payment from Oliver.

Counsel for Bill's Auto Rental moved for a directed verdict, arguing that this uncontradicted testimony proved the "unauthorized use" of the truck and that as a matter of law the company could not be liable. This motion was denied and the issue of consent was treated as one of fact for the jury, which as we have seen ruled adversely to the several plaintiffs suing the rental company. In the case tried by the judge the finding was, as we have said, for the plaintiff, James W. Lancaster, against Bill's Auto Rental only, and a finding in favor of the other two defendants, the taxi company and its driver, Joseph S. Lancaster. We have before us the appeals of Bonded Taxi Co., and Lopez and Joseph L. Lancaster from the judgment which followed; we also have the appeal of Bill's Auto Rental from the judgment in favor of James W. Lancaster.

The first issue we must decide is whether the trial court was correct in submitting the question of consent to the jury. The District of Columbia Owners' Financial Responsibility Act provides: "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."²

Appellants argue that this statutory presumption was not met in the trial below, that because the collision resulted from the negligence of the truck driver, Bill's Auto Rental is liable as owner of the truck. They insist that the evidence as to the termination of consent was all self-serving in nature and not sufficient to overcome the statutory presumption of consent; and that the trial judge should have ruled as a matter of law that Bill's Auto Rental was liable as owner of the truck.

We think that the evidence presented by Bill's Auto Rental was sufficient to meet the statutory presumption of consent.

There is a difference between meeting a presumption and overcoming or destroying one. When a statutory presumption is met by some credible evidence, it becomes, in a sense, something like an inference.³ And when more than a single inference may be drawn from the evidence, then a question of fact is presented for jury determination.⁴

There is a line of decisions in this jurisdiction which clarify this proposition. In Rosenberg v. Murray, 73 App.D.C. 67, 68, 116 F.2d 552, 553, it was held that positive testimony overcame the presumption of consent. It was noted that the contradictions in the testimony were neither material nor substantial. Referring to the statute, the court stated: "The effect of this provision is simply to shift the burden of proof and to impose on the defendant owner the affirmative duty of proving that the car was not at the time of the accident operated with his express or implied consent. * * * This presumption continues until there is credible evidence to the contrary, and ceases when there is uncontradicted proof that the automobile was not at the time being used with the owner's permission."

There the presumption was met, overcome, and destroyed by credible evidence presented by the owner, and the trial judge was upheld in his ruling that the question was solely one of law.⁵

In a later case under the same statute,⁶ the court reversed a directed verdict for a defendant cab owner. The trial court had granted the motion on the ground in part that "defendant's corroborated molly, that the cab was being operated without his...