McClellan v. Allstate Insurance Company

• Decision Date: 24 October 1968
• Docket Number: No. 4152.,No. 4151.,4151.,4152.
• Citation: 247 A.2d 58
• Parties: John Alexander McCLELLAN, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation, and H. J. Banachowski, Appellees. John A. McCLELLAN, Appellant, v. Daniel T. PICKETT, American Motorists Insurance Company, and Harry J. Banachowski, d/b/a National Parking Service, Appellees.
• Court: D.C. Court of Appeals

247 A.2d 58

John Alexander McCLELLAN, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation, and H. J. Banachowski, Appellees.

John A. McCLELLAN, Appellant, v. Daniel T. PICKETT, American Motorists Insurance Company, and Harry J. Banachowski, d/b/a National Parking Service, Appellees.

No. 4151.

No. 4152.

District of Columbia Court of Appeals.

Argued June 17, 1968.

Decided October 24, 1968.

Darryl L. Wyland, Washington, D. C., for appellant. Brendon G. Fitzpatrick also entered an appearance for appellant.

Patrick J. Attridge, Washington, D. C., with whom Edwin A. Sheridan, Washington, D. C., was on the brief, for appellee Allstate Insurance Co.

Ben Cotten, Washington, D. C., with whom F. Wainwright Barnes, Washington, D. C., was on the brief, for appellees Daniel T. Pickett and American Motorists Insurance Co.

Joseph L. Holland, Washington, D. C., for appellee Harry J. Banachowski.

Before HOOD, Chief Judge, and MY-ERS and KELLY, Associate Judges.

MYERS, Associate Judge:

Appellant delivered his automobile, for storage during the day, to an attendant employed at a parking lot operated by appellee Banachowski, and, as required by the lot, left the keys in the ignition. When he returned to reclaim his car, a man, later identified as one John Teamus, who had just delivered a car to another customer, approached appellant and inquired, "Which car is yours?" Appellant pointed out his car, and Teamus went to get it. As he was driving across the lot to the exit where appellant was waiting to receive his car and pay the parking fee, Teamus swerved to avoid running into a pile of macadam, lost control of the car, left the lot and entered the street, where he collided with other automobiles. Owners of the damaged vehicles, and/or their collision insurance carriers, sued appellant, as well as Banachowski¹ and Teamus² for the resulting damage.

At trial, testimony brought out that the regular attendant, James Prue, was responsible for two lots operated by appellee. Although the lots were in the same block, they were separated by a brick building and, occording to Prue, it took him several minutes to walk from one lot to the other. When he was especially busy, Prue would obtain additional help from another downtown lot operated by appellee. Appellant was a regular customer, and sometimes Prue, sometimes another attendant, would handle his car. At the time appellant came for his car, Prue was the only attendant on duty and had gone to the other lot to obtain a car for a customer. Teamus was not a regular or substitute attendant hired by appellee. Neither had he been asked by Prue to assist. Rather, it appears Teamus had voluntarily undertaken to assume the role of attendant and to deliver cars to customers who came to claim their autos. It was not the first time he had done so. Some five or six weeks before the events here under consideration, Prue had caught Teamus similarly moving cars "and had run him off the lot."

The trial judge, sitting without a jury, found appellant liable for the damages sustained and entered judgment in favor of Banachowski on appellant's cross-claim and third party complaint which alleged Banachowski's negligence and sought from him indemnification or contribution for all or part of any judgment rendered against appellant, who here challenges these rulings.

Appellant contends, primarily, that the trial judge erred (1) in holding that appellant consented to the operation of his car by Teamus and therefore, under Section 40-424 D.C.Code, 1967 ed., is liable for the resulting damage, and (2) in failing to award him judgments on his claims against appellee for indemnification or contribution.

We first consider whether appellant was properly held liable under Section 40-424, which 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.

There is thus created a statutory presumption — a statutory rule of evidence that proof of ownership of a motor vehicle involved in an accident shall be prima facie evidence that the vehicle is being operated with the consent of the owner. The presumption is, however, a rebuttable one and continues only until overcome by uncontradicted proof sufficient to destroy the inference. Furthermore, in our judgment, the consent contemplated by the statute is an informed consent, based on knowledge, not clouded by mistake or misrepresentation, or produced by error of fact.³ Consent implies knowledge on the part of the person giving consent,⁴ and consent obtained on the basis of deception is no consent at all.

We have found no case which spells out completely, for the purposes of this appeal, the nature of the consent which arises from the bailor-bailee relationship created under the facts of this case.⁵ However, in our opinion, an owner who leaves his car, together with its keys, with an attendant at a parking lot or garage, for a stipulated fee, consents only to the limited operation of his car as necessarily incident to its storage there and to its operation only by authorized employees of that lot who meet the requirements of applicable police regulations, who are qualified and licensed to drive, and who stand in the relationship of agent or servant of the operator of the lot so that, in the event of any dereliction on the part of an employee, he, the car owner, may seek redress from the lot operator. The owner certainly does not indiscriminately consent to the driving of his car by just anyone, and in our judgment he is entitled to rely on the apparent representation that any individual present on the lot, acting in the manner of an authorized attendant and performing the usual tasks incident thereto, meets these qualifications. We do not conceive a duty upon appellant to make a searching inquiry into Teamus' status and to ask for his credentials. Rather, we believe there was an obligation upon appellee to provide a sufficient number of attendants or adopt adequate safety measures to reasonably insure that no unauthorized person would drive the vehicles parked on the lot⁶ Supervision was especially necessary here because the cars, which...