Marchetti v. Olyowski

• Decision Date: 06 March 1950
• Docket Number: No. 10306.,10306.
• Parties: MARCHETTI et al. v. OLYOWSKI.
• Court: U.S. Court of Appeals — District of Columbia Circuit

86 US App. DC 215, 181 F.2d 285 (1950)

MARCHETTI et al. v. OLYOWSKI.

No. 10306.

United States Court of Appeals District of Columbia Circuit.

Argued January 4, 1950.

Decided March 6, 1950.

Messrs. Joseph D. Bulman and Sidney M. Goldstein, Washington, D. C., for appellants.

Mr. David W. Louisell, Washington, D. C., with whom Messrs. Samuel Spencer and Charles W. Proctor, Washington, D. C., were on the brief, for appellee.

Before WILBUR K. MILLER, PROCTOR and WASHINGTON, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

Mrs. Annie E. Olyowski was injured on February 16, 1946, when the cab in which she was a passenger collided with a parked truck on a highway in northern Virginia. A jury in the United States District Court for the District of Columbia awarded damages to Mrs. Olyowski against Anthony J. Nolan, who was operating the cab at the time of the accident, against Philip Marchetti, in whose name it was registered as a taxicab by the Public Utilities Commission of the District of Columbia and in whose name public liability insurance was carried, as evidenced by a sticker on the windshield, and against American Cab Association, whose trade name and color scheme appeared on the cab. Marchetti and American appeal.

In order to ascertain whether either appellant was legally liable for Nolan's negligence, it is necessary to examine the relations between Nolan, Marchetti and American Cab Association as disclosed by the evidence.

Mrs. Olyowski became acquainted with Nolan on February 13, 1946, when she hailed him at 14th and K Streets, N. W. At that time he was operating a Diamond cab. She engaged him to drive her to Charlotte, North Carolina, and return, with the understanding that the exact time of departure would be determined in a day or two. They agreed upon a fare of $150, of which $50 was to be paid when the trip began and the remainder when it was completed.

On February 14, the day after he had made the contract with Mrs. Olyowski, Nolan purchased from Marchetti a taxicab which bore the color scheme and trade name of American Cab Association, of which Marchetti was a member and Nolan was not. Upon receipt of the purchase price, Marchetti delivered the car to Nolan, who immediately had it licensed (as an automobile but not as a taxicab) in his own name. Neither he nor Marchetti notified the American Cab Association that the vehicle bearing its mark and color design had been sold and delivered to Nolan. Neither notified the Public Utilities Commission of the transfer and Nolan did not make application to the Commission to have the car registered in his name as a taxicab nor did he seek the Commission's authorization to operate it under the trade name of American Cab Association. Consequently, when Nolan collected $50 from Mrs. Olyowski and set out on the journey to Charlotte at 2:00 a. m. on February 16, his cab bore the insignia and colors of American Cab Association without its knowledge or consent, and was licensed by the Commission and insured as a taxicab, not in his name, but in the name of Marchetti. Just south of Alexandria, Virginia, Nolan picked up a soldier. The hitchhiker had a bottle of whiskey which he shared with Nolan. Soon after, the accident occurred.

The proof showed that under the rules of the Public Utilities Commission the transfer of the title to a taxicab must be reported to the Commission. A transferee cannot legally operate the vehicle as a taxicab until he has applied for and obtained his own permit and the required public liability insurance. The transferee of the taxicab cannot legally operate it under the trade name of a cab association until he has presented to the Commission the association's assent, and has received official authority to operate with the chosen colors and insignia.

The evidence showed that American Cab Association does not own or operate taxicabs, does not operate a garage, does not advertise, and does not furnish any telephone call service. The extent of its activity seems to be to permit its members to use its trade name and its color scheme and to obtain public liability insurance, the effectiveness of which is indicated by a windshield sticker supplied to the members by the Association.

With the evidence as we have summarized it, the district judge submitted to the jury the question of Nolan's negligence and charged the jury that, if it found against Nolan, it must also find against Marchetti and American Cab Association.¹

We shall first consider the propriety of this charge with respect to American. We held in Callas v. Independent Taxi Owners' Association, 1933, 62 App.D.C. 212, 66 F.2d 192, that a taxicab bearing the peculiar colors and trade name of a cab association is presumed, when involved in an accident, to have been in the custody of, and engaged in the business of, that association; and that the presumption is enough to take the case to the jury. We also held in the Callas case, however, that the presumption is rebuttable, saying, 62 App.D.C. at page 214, 66 F.2d at page 194, "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...