Howard v. Swagart, 9409.

• Decision Date: 05 May 1947
• Docket Number: No. 9409.,9409.
• Citation: 82 US App. DC 147,161 F.2d 651
• Parties: HOWARD v. SWAGART et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 147, 161 F.2d 651 (1947)

HOWARD v. SWAGART et al.

No. 9409.

United States Court of Appeals District of Columbia.

Argued March 12, 1947.

Decided May 5, 1947.

Mr. Earl H. Davis and Mr. A. Arvin Lynn, both of Washington, D. C., with whom Mr. Martin Mendelsohn, of Washington, D. C., was on the brief, for appellant.

Mr. Austin F. Canfield, of Washington, D. C., with whom Mr. Julian H. Reis, of Washington, D. C., was on the brief, for appellees.

Before GRONER, Chief Justice, and EDGERTON and CLARK, Associate Justices.

CLARK, Associate Justice.

This is an appeal from the action of the District Court of the United States for the District of Columbia entering judgment for appellees, defendants below, and setting aside a verdict of the jury in favor of appellant, plaintiff below, in accordance with Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Appellant was injured when she was struck by an automobile driven by Elbert W. Cherry, who was neither its owner nor its authorized user. It is necessary to record a detailed account of the facts leading up to Cherry's securing possession of the car in order to present a complete picture of the case essential to a proper disposition of the appeal, and in order to portray clearly the legal relationship of the several parties involved.

In the afternoon of Thursday, December 7, 1944, Lawrence A. Baker, the owner of a certain maroon Lincoln Zephyr sedan, parked his automobile at the S & H Parking Center located in the 1500 block of Eye Street, Northwest. He had a monthly storage contract with the garage which gave him the privilege of taking his car in and out as he wished, in contrast to the daily customer who paid a per diem rate and was given a claim check on each occasion his car was parked. On this particular instance, Baker instructed the garage employee present to close the car windows because he was going away for a day or two. As required by the garage, he left the key in the ignition switch, but took all other keys.

Customers of the Parking Center, daily and monthly, are not permitted to park the car themselves, but simply drive into the garage through its single entrance, leaving the car for one of the garage's employees, referred to as hustlers or parking attendants, to park in the place assigned to it on one of the various floors. When a customer calls for his car, he is required to wait on the ground floor until a hustler brings the car down to the garage's single exit. Both the entrance and the exit are on Eye Street, the entrance at the east end of the garage and the exit at the west end. The garage manager's office is beside the entrance and the cashier's office is beside the exit.

During the period here involved, the garage was operated on a 24 hour basis. Between 8:00 o'clock a. m. and 6:00 o'clock p. m., it was in charge of Mr. Wine, the day manager. Mr. Smith, the night manager, was in control the remaining hours. Wine generally had seven or eight employees on duty with him, including parking attendants and car washers. One such car washer was Elbert W. Cherry. Before going off duty, Wine would have the cars belonging to daily customers brought down from the upper floors to the first floor to facilitate the work of the night crew. The monthly cars, which had designated places mostly on the fourth and fifth floors, were brought down only when the owners came for them. Smith had only two employees stay with him part time, a parking attendant named Wyatt Clinton, who came on duty shortly after 5:00 o'clock p. m., and remained until 10 o'clock p. m., and a cashier, who also remained on duty until 10:00 o'clock p. m.

Clinton, who had been employed by the Parking Center for approximately two months prior to December 7, 1944, worked for the War Department during the day and performed his part time duties at the garage during the evening. Cherry had been employed by the garage two or three weeks before December 7, 1944. He had been sent there by the United States Employment service. At the time he was interviewed for the position by Wine, who at that time was in charge of hiring, firing and supervising employees at the garage, he had with him the standard referral card required by government regulations issued under the Presidential Proclamation governing employment stabilization. He was employed as a day time car washer with the understanding that he would sometimes be called upon to work overtime either to wash cars or to act as a parking attendant. Wine testified that at the time Cherry was hired they accepted all employees referred to them by the United States Employment Service without making any independent investigation as to their background and no independent investigation was made concerning Cherry. He further testified that if he had known of Cherry's past criminal record¹ he would not have accepted him as an employee.

On the evening of December 7, 1944, Cherry was asked to work overtime washing cars. The wash rack was located on the second floor directly to the rear of the garage exit. During the course of the evening, Smith, the night manager, saw the Baker car near the wash rack. Cherry testified that while he did not see the car there, he heard Smith upbraid Clinton for bringing the car down from its usual spot on the fourth floor, and order him to return it to its proper place. Smith testified that he never followed up to see if his order was carried out.

On this same evening, Cherry and Clinton finished work at 10:00 o'clock p. m., and checked out together.² Cherry met his wife and baby who were waiting for him outside the garage and Clinton offered to drive them home. Cherry expressed some doubt as to Clinton's having a car but Clinton assured him that he had one parked at 16th and Eye Streets. They walked to that intersection where a maroon Lincoln Zephyr sedan was parked. Clinton informed Cherry that he had purchased it from his winnings in the numbers game. The pair took Cherry's wife and baby home and then returned to Clinton's home where they had a few drinks after which Cherry walked to his home.

The next morning, Friday December 8, 1944, Cherry, while walking to his work, passed Clinton's home where the latter was sitting on the steps. The car was parked nearby. Cherry asked Clinton to lend him the car and Clinton agreed. Cherry did not take the car then, but proceeded on to work where he was told by Wine that there was no work for him that day and that he could check out. He then returned for the car, picked up two girls on Ninth Street and while he was driving them about struck appellant with resulting injury. After taking appellant to the hospital, Cherry called Clinton and it was then, according to his testimony, that he first found out the car had been stolen by Clinton.

Appellant named as defendants in her action the present appellees, Swagart and Hartig, who own and operate the S & H Parking Center, and Baker, the owner of the car. The court directed a verdict in favor of Baker at the close of appellant's evidence and no appeal has been taken as to him. Appellees moved for a directed verdict after appellant's opening statement, at the close of appellant's evidence and at the conclusion of all the evidence. These motions were all denied. The jury returned a verdict for appellant for $7,500.00 and judgment was entered thereon. Appellees moved for judgment notwithstanding the verdict and in the alternative, for a new trial. The court overruled the latter motion while granting the motion for judgment notwithstanding the verdict, and ordered that judgment be entered in favor of appellees. This appeal followed.

Giving full effect to the principles established by decisions of the Supreme Court and of this court³ for reviewing the action of the trial court in granting appellees' motion for judgment non obstante veredicto, we proceed to a determination of whether, as a matter of law, the evidence presented by appellant failed to make a case and, therefore, a verdict in appellees' favor should have been directed.

Appellant's position is that under the evidence the jury was warranted in finding that appellees were negligent in three respects, first, in failing to remove the ignition key from the Baker car; second in employing Elbert W. Cherry without investigating him; and third, in failing to provide and maintain adequate supervision and control over the cars left in their custody and control. Appellant further asserts that the jury was warranted in finding that...