Milstead v. District of Columbia

• Decision Date: 22 August 1952
• Docket Number: No. 1231.,1231.
• Citation: 91 A.2d 93
• Parties: MILSTEAD v. DISTRICT OF COLUMBIA.
• Court: D.C. Court of Appeals

Page 93

91 A.2d 93

MILSTEAD v. DISTRICT OF COLUMBIA.

No. 1231.

Municipal Court of Appeals for the District of Columbia.

Argued July 28, 1952.

Decided August 22, 1952.

Eugene X. Murphy, Washington, D. C., with whom Rex K. Nelson, Washington, D. C., was on the brief for appellant.

Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., with whom Vernon E. West, Corp. Counsel, and Chester H. Gray, Principal Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

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

CAYTON, Chief Judge.

The District of Columbia sued Earl E. Milstead for damages sustained by one of its ambulances when struck by a tractortruck owned by Milstead. Trial was had without a jury and resulted in finding and judgment in favor of plaintiff, and in this appeal by defendant.

Defendant's first contention is that "the trial court erred in holding that his motor vehicle was operated at the time of the accident with his consent, actual or implied, in contemplation of the Automobile Financial Responsibility Law." Code, 1940, 40-403.¹

The cited statute casts the burden of proof as to the question of consent upon the defendant-owner. Rice v. Simmons, D.C.Mun.App., 53 A.2d 587, and cases there cited. Where there is proof that a defendant owned the vehicle involved in a collision and there is no credible evidence on behalf of defendant tending to negative the statutory presumption, a plaintiff who has otherwise established liability is entitled to a directed verdict. Hiscox v. Jackson, 75 U.S.App.D.C. 293, 127 F.2d 160. On the other hand the presumption may be neutralized or overcome by uncontradicted proof that the vehicle was not at the time being used with the owner's permission; and when the presumption is thus overcome a motion for a directed verdict (or a favorable finding as a matter of law) for the defendant-owner is proper. Rosenberg v. Murray, 73 App. D.C. 67, 116 F.2d 552; Conrad v. Porter, D.C.Mun.App., 79 A.2d 777, affirmed, D.C. Cir., 196 F.2d 240; Rice v. Simmons, supra.

Between these two extremes is the situation where a defendant comes forward to challenge the statutory presumption by some credible evidence but such evidence is not strong enough to entitle him to judgment as a matter of law. Then the question of defendant's liability resolves itself into an issue of fact. Marchetti v. Olyowski, 86 U.S.App.D.C. 215, 181 F.2d 285; Hiscox v. Jackson, supra; Bill's Auto Rental v. Bonded Taxi Co., D.C.Mun.App., 72 A.2d 254. (Appeal denied by United States Court of Appeals, July 28, 1950.) It is therefore necessary to examine the evidence adduced at the trial of this case in order to determine whether defendant should have been granted judgment as a matter of law.

Milstead, the defendant, was the owner of the tractor-truck involved and he paid the salary of one Whye, the operator thereof. By verbal arrangement he leased the truck, with the driver, to B & F Transportation Co., and Whye was to take his instructions from that company. On the day in question, according to Milstead himself, he telephoned the B & F Co. and told them that one of his trucks had become disabled and "asked them to send a driver out to pick it up." (On cross-examination he changed this and said that he had specifically requested that his driver, Whye, be sent out to pick up the disabled truck.) When Whye got into the truck he found one Russell sitting behind the wheel and Russell "stated that he wanted to drive this tractor because it was a Dodge and Mr. Fox was going to buy a new Dodge; that he did not give him permission to drive nor did he tell him not to drive; that Russell started down New York Avenue to pick up a spring for Fox at Martin & Boyds on New York Avenue, and they were then going out to the highway to pick up Mr. Milstead's trailer;" and at 3rd Stet and New York Avenue the collision took place.

An immediate question to be met and answered is how was the issue of defendant's consent affected by the fact that Russell and not Whye, his own employee, was driving the tractor? Necessarily coupled with that is the question as to what mission the truck was on at the time. Defendant testified that he had specifically instructed his drivers that they were not to permit anyone else to operate the trucks. But that part of his testimony was directly contradicted by Whye who said "that he had not been instructed by the defendant not to permit anyone else to drive the tractor." It was the function of the trial judge to resolve this conflict between the testimony of defendant and that of Whye. If he resolved it in favor of defendant he could reasonably have inferred and found that defendant had neither expressly nor impliedly consented to the operation by Russell. But if he resolved it against defendant there would have been nothing left from which it could have been authoritatively said as a matter of law that defendant had carried his statutory burden of proof and overcome the presumption, because the remaining evidence on behalf of defendant was susceptible to conflicting inferences. For example, the terms of the alleged oral lease were not in evidence; Whye, although an employee of defendant, was under the control of B & F; despite the fact that the truck and driver were not usually and generally under the control of defendant they had on this particular day and time been dispatched on a mission for defendant.

While the trier of the facts might not necessarily conclude from this obvious informality in the dealings and course of conduct among the parties, that there was implied consent, we cannot say that he was required to conclude or infer the contrary. There was not in this case the clear and unequivocal negation of the presumption which was found in Rosenberg v. Murray and Conrad v. Porter, both supra. There is not in this record the positive testimony...