Conrad v. Porter, 1022.

• Decision Date: 05 April 1951
• Docket Number: No. 1022.,1022.
• Citation: 79 A.2d 777
• Parties: CONRAD v. PORTER.
• Court: D.C. Court of Appeals

Page 777

79 A.2d 777

CONRAD v. PORTER.

No. 1022.

Municipal Court of Appeals for the District of Columbia.

Argued March 5, 1951.

Decided April 5, 1951.

J. Joseph Barse, Washington, D. C., John R. Daily, H. Mason Welch, and J. Harry Welch, all of Washington, D. C., on the brief, for appellant.

Earl H. Davis, Washington, D. C., for appellee.

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

CLAGETT, Associate Judge.

Plaintiff was the owner of an automobile which was demolished while legally parked on a street in front of his home. His car was hit by a truck owned by defendant and driven by a third person to whom the truck had been loaned by defendant's employee. Damages were stipulated. The case being submitted to a jury defendant was held liable. He appeals on the ground that his motion for a directed verdict at the conclusion of the evidence or for judgment notwithstanding the verdict should have been granted as a matter of law.

No serious question is raised as to the negligence of the person who was driving the truck and the trial turned completely on the responsibility of the defendant truck owner. He owns six or seven other trucks which were engaged in the business of hauling ashes and miscellaneous material. One of his contracts is to haul ashes from Walter Reed Hospital located on Georgia Avenue, N.W. Since a part of this arrangement is that the ashes be removed from the hospital early Sunday morning and since his truck yard is closed on Sunday, he and his general manager had established the custom of allowing his driver to take a truck home Saturday evening with instructions to get the ashes from Walter Reed Hospital, convey them to Kensington, Maryland, and then keep the truck at the driver's home Sunday night and return it to the office Monday morning. The accident occurred early Sunday morning when the truck was being driven by a man named Baylor, a friend to whom the regular truck driver, George Washington, allegedly loaned the truck.

The location of various addresses have some bearing on the question of responsibility for the accident. All of these addresses lie within a circle with a radius of about five blocks and a center at Twenty-fifth and M Streets, N.W. The truck yard of defendant Conrad from which Washington left with the truck late Saturday afternoon is at 604 Twenty-fifth Street. Plaintiff Porter lives at 1152 Twenty-fifth Street and his car which was struck was parked on the east side of Twenty-fifth Street just south of M Street. Baylor, driver of the truck at the time of the accident, lives at 1269 Twenty-fifth Street. Washington lives at 1021 Cecil Place, also south of M Street and about five blocks west of Twenty-fifth Street. The other address claimed to be involved is at Twenty-first Street and Ward Place near the corner of Twenty-first and 0 Streets.

The stories of Washington and Baylor differed in one or more important respects. According to Washington, when he left the Conrad truck yard at 604 Twenty-fifth Street, he went directly to the Twenty-first Street and Ward Place address where he remained in a poker game until six o'clock the next morning. Baylor was one of those present, according to Washington, and some time after midnight he loaned Baylor the truck to get some cigarettes and sandwiches at Wisconsin Avenue and M Street. He didn't see Baylor again until after the accident. According to Baylor, however, Washington went to Baylor's home at 1269 Twenty-fifth Street; Baylor said he never went to Twenty-first Street and Ward Place; he never engaged in a poker game and the truck was loaned to him at his home on Twenty-fifth Street. Instead of going to Wisconsin Avenue and M Street for the cigarettes and sandwiches, he went to the Southwest section of the city and was returning home when the accident occurred. The only importance of these differing stories is the reliance to be placed on Washington's credibility.

The case as tried depended entirely upon the evidence as related to the District of Columbia Owners' Financial Responsibility Act, Code 1940, § 40-403 which in its pertinent part provides: "Whenever any motor vehicle, after the passage of this chapter, 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 than ownership of said motor vehicle shall be prima facie evidence that such person operated said motor vehicle with the consent of the owner."

In Rosenberg v. Murray, 73 App.D.C. 67, 116 F.2d 552, 553, it was said that: "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. Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632. 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." It was added that in that case the owner had testified positively and unequivocally that the driver had taken the car...