Nat'l Trucking & Storage Co. v. Driscoll.

• Decision Date: 17 February 1949
• Docket Number: No. 738.,738.
• Citation: 64 A.2d 304
• Court: D.C. Court of Appeals
• Parties: NATIONAL TRUCKING & STORAGE CO. v. DRISCOLL.

64 A.2d 304

NATIONAL TRUCKING & STORAGE CO.

v.DRISCOLL.

No. 738.

Municipal Court of Appeals for the District of Columbia.

Feb. 17, 1949.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by William L. Driscoll against the National Trucking & Storage Company, a corporation, to recover for damage to plaintiff's taxicab as result of a collision with defendant's truck. From a judgment for the plaintiff, the defendant appeals.

Judgment reversed.

Douglas A. Clark, of Washington, D. C. (William F. Fitzgerald, of Washington, D. C., on the brief), for appellant.

James J. Slattery, of Washington, D. C. (Frank J. Kelly, of Washington, D. C., on the brief), for appellee.

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

CLAGETT, Associate Judge.

The question presented by this appeal is whether the contributory negligence of the driver of a rented taxicab may be imputed to its owner when the owner sues a third party for damage to the taxicab resulting from a collision. The trial court held that the contributory negligence of the driver of the taxicab could not be imputed to the owner, who was plaintiff below, and so instructed the jury. The jury returned a verdict for plaintiff and defendant appeals.

On the day of the collision plaintiff, owner of a fleet of taxicabs, operating under an association name and colors, had rented the cab to the driver for a 12-hour period for a fixed sum. The driver was to have complete control of the taxicab for that period. He was to purchase the necessary gasoline. Plaintiff was to furnish the necessary oil and was to be liable for any repairs, as well as for a per diem payment for insurance.

While the driver was engaged in carrying a passenger for hire in the District of Columbia, the taxicab was struck by a heavy trailer truck belonging to defendant and driven by one of its employees on its business. Depending on the credibility of witnesses and the view of the evidence taken by the jury, such evidence probably would have sustained a verdict that the collision was caused by the sole negligence of the truck driver or by the sole negligence of the taxicab driver or by the concurrent negligence of both.

The court below, however, removed from consideration of the jury the question of the contributory negligence of the taxicab driver by giving an instruction that the negligence of the driver could not be imputed to plaintiff, as owner of the taxicab, who was not riding in it at the time of the collision. The giving of this instruction is the sole error assigned.

A preliminary question is the legal relationship between plaintiff and the driver of the taxicab. Defendant below urges that the owner and driver were engaged in a joint venture or a joint enterprise. We do not agree. To establish such relationship there must exist not only a community of interest in the subject of the venture, ¹ ‘but also an equal right, express or implied, to direct and control the management and movement of the car.' ² In order to impute the negligence of one of the parties in a joint venture to the other, each must have authority to control the means employed to execute the common purpose. ³ Here, while plaintiff owned the taxicab, he did not exercise nor did he have the right to exercise any control over its use by the driver. ⁴ We hold, therefore, that if the negligence of the driver could be imputed to plaintiff it could not be on the theory that they were engaging in a joint enterprise.

Aside from the effect of the local Automobile Financial Responsibility Law, ⁵ it is clear that the relationship between plaintiff and the taxicab operator was one of bailment. The prevailing present rule in most of the states as well as in the federal courts, absent statutory provisions to the contrary, is that a bailee's contributory negligence is not a good defense to a bailor's action for damages against a third party. ⁶ The basis of decisions establishing this rule has been that a bailee is not his bailor's servant or agent, that the bailor was not in control of the car, even vicariously, at the time of the accident, and hence that the bailor is not responsible in damages to third persons injured by the bailee's careless use of the automobile. ⁷

The question next arises whether this rule was changed by the Automobile Financial Responsibility Law, the pertinent portion of which follows:

‘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.’ ⁸

Before the passage of this statute, it was the settled law in the District of Columbia that the owner of an automobile was not liable for damages negligently caused by another in the use of the automobile for the other's purposes and not on the owner's business. ⁹ The statute, however, changed this rule and made the owner liable, upon analogy to the principles of agency, for an injury negligently inflicted by a person using the automobile with his consent. ¹⁰ Whether the act also makes the driver the agent of the owner to the extent of imputing the contributory negligence of the driver to the owner under the circumstances present here has not previously been decided in this jurisdiction.

The courts of three states-Iowa, New York and Minnesota-in which the question has been decided under similar or identical statutes have reached conflicting conclusions. ¹¹ In Iowa it has been hold that the contributory negligence of a bailee, in case the automobile which is the subject of the bailment is damaged as a result of the concurring negligence of the bailee and a third party, is imputable to the bailor and the bailor may not recover damages against the third party. ¹² New York and Minnesota have taken the contrary view. ¹³

The Iowa statute did not in terms make the driver of an automobile the agent of the owner consenting to its use but provided that ‘in all cases where damage is done by the car, driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage.’ Code 19.27, § 5026. The Oowa Supreme Court held that this language was broad enough to cover all of the legal relations of principal and agent, master and servant, bailor and bailee. It argued, therefore, that since the statute created the relationship of principal and agent it followed that the rules applicable to such relationship should apply, including the rule that the negligence of the agent is imputable to the principal. It also invoked what has become known as the ‘two-way rule’, namely, that if an owner of an automobile is liable to a third party for damages to the third party's automobile caused by the negligence of the owner's agent then the agent's negligence should be imputed to the owner when the latter sues a third party for damages to his automobile.

The New York Court of Appeals did not discuss the question in detail but merely affirmed in a memorandum opinion a decision of the appellant division of the New York Supreme Court. Previously the intermediate appellate courts in New York were in conflict on the issue. The decision affirmed by the New York Court of Appeals was based on the theory that the New York Financial Rsponsibility Act, Vehicle and Traffic Law, § 59, was enacted solely ‘to remove the hardship which the common-law rule visited upon innocent persons by preventing ‘an owner from escaping liability by saying that his car was being used without authority, or not in his business.’' [259 App.Div. 60, 18 N.Y.S.2d 80.] The court held that the statute could not be invoked for the purpose of imputing the operator's contributory negligence to the owner and that it was applicable only in actions brought by third persons against the owner. The New York statute is almost identical with the Iowa statute and does not specifically make the driver using an automobile with the consent of the owner the agent of such owner. ¹⁴

The Minnesota statute is more like ours. It provides that when an automobile is driven with the consent of the owner, express or implied, the operator thereof shall, in case of accident ‘be deemed the agent of the owner of such motor vehicle in the operation thereof.’ M.S.A. § 170.54. ¹⁵ However, the title of the act, Laws 1933, c. 351,-somewhat different from ours-formerly stated that its purpose was to provide for the establishment of financial responsibility by owners of motor vehicles ‘for personal injuries, including death, and property damage resulting from the maintenance, use, and operation thereof.' ¹⁶ The Minnesota Supreme Court considered both the Iowa and New York decisions and adopted the New York view. It based its holding largely upon the theory that the title of the Minnesota statute indicated that it was enacted for the purpose of establishing financial responsibility on owners of automobiles involved in collisions, that ‘financial responsibility means obligation to pay a third party,’ and that there was no indication in the statute of an intent to change the previously existing rule with respect to contributory negligence. It held that the language in the act that the operator of an automobile shall ‘be deemed the agent of the owner’ did not mean that the operator was made the agent of the owner for all purposes but solely in situations where a third party was suing the owner. It argued that ‘the doctrine of contributory negligence does not effectuate the purpose of the statute of establishing financial responsibility for negligence. On the contrary, by barring plaintiffs it operates to defeat such responsibility by enabling...