National Tire Dealers & Retread. Ass'n G. D. C. Corp., 2265.

• Decision Date: 19 January 1959
• Docket Number: No. 2265.,2265.
• Parties: NATIONAL TIRE DEALERS & RETREADERS ASSOCIATION, INC., Appellant, v. G. D. C. CORPORATION and Square Deal Trucking Co., Inc., Appellees.
• Court: D.C. Court of Appeals

147 A.2d 869

NATIONAL TIRE DEALERS & RETREADERS ASSOCIATION, INC., Appellant, v. G. D. C. CORPORATION and Square Deal Trucking Co., Inc., Appellees.

No. 2265.

Municipal Court of Appeals for the District of Columbia.

Argued October 27, 1958.

Decided January 19, 1959.

Robert L. Ackerly, Washington, D. C., for appellant.

Lawrence T. Scott, Washington, D. C., with whom Albert E. Brault and Denver

H. Graham, Washington, D. C., were on the brief, for appellee G. D. C. Corp.

H. George Schweitzer, Washington, D. C., with whom W. Cameron Burton and Thomas B. Heffelfinger, Washington, D. C., were on the brief, for appellee Square Deal Trucking Co., Inc.

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

HOOD, Associate Judge.

Appellant, hereafter referred to as the Association, leased office space in an office building from appellee G. D. C. Corporation, hereafter referred to as the Corporation. On August 8, 1957, a shipment of sixteen cartons of tire "wrap-a-rounds" — an advertising emblem used by members of the Association — arrived at the delivery area of the building, a room at the rear facing an alley. An employee of the Corporation notified Mr. Wagner, an official of the Association, that the shipment had arrived, and he went to the room, counted the cartons, and signed a receipt. At that time, according to Mr. Wagner, the cartons were piled up against the back wall of the room.

Later in the day, at approximately 4:00 or 4:30 p. m., after he had ascertained that he could not have the cartons taken to the warehouse until the next day, Mr. Wagner called the office of the superintendent of the building and asked, "would it be all right to leave them in their space overnight, and let them be picked up the following day for delivery to our warehouse." The person answering the telephone stated he knew where the cartons were and that it was all right to leave them. The person answering was Edwards, a porter at the building. Edwards reported the conversation to Aldrich, the assistant engineer or superintendent of the building, and Aldrich said "Okay."

The next morning between 8:00 and 8:30 a. m. Miles, a truck driver of appellee Square Deal Trucking Co., hereafter called the Trucking Company, picked up the trash from the delivery room.¹ He testified he took all the trash, including the cartons which he said he found in and on the trash receptacles. No other person was present when he gathered up the trash.

Later in the day Wagner learned that the cartons were missing and a search was instituted by Mr. Yoho, the building superintendent. As a result the cartons were found at the trash dump and those which could be salvaged were returned.

This action was brought by the Association against both the Corporation and the Trucking Company for damages in excess of $1,000. At trial the Association called Wagner, its own witness, and in addition thereto, as adverse witnesses, Edwards, Aldrich, Yoho and Miles. At the conclusion of plaintiff's evidence the trial court, sitting without a jury, granted motions by both defendants to dismiss. This appeal followed.

At the outset we must consider what standards are to be applied in reviewing the action of the court in a nonjury case in dismissing plaintiff's case at the conclusion of plaintiff's evidence.

In 1945, in Merriam v. Sugrue, D.C. Mun.App., 41 A.2d 166, we ruled that in a nonjury case the court had no power at the conclusion of a plaintiff's case to weigh the evidence and make findings of fact; that at that stage a plaintiff is entitled to have his evidence viewed in the light most favorable to him with all reasonable inferences in his favor. We adhered to this view in subsequent cases. See Carow v. Bishop, D.C.Mun.App., 50 A.2d 598; Rieffer v. Hollingsworth, D.C.Mun.App., 52 A.2d 632; Taylor v. United Broadcasting Co., Inc., D.C.Mun.App., 61 A.2d 480. In the last-named case Judge Clagett dissented. He felt that the 1948 amendment to Federal Rule of Civil Procedure 41(b), 28 U.S.C.A., had made clear that under the federal rule the court in a nonjury case could et the close of plaintiff's case determine the facts and render judgment against the plaintiff, and that the Municipal Court, whose rules closely followed the federal rules, had the same power, even though at that time the Municipal Court had not changed its rule to conform to the 1948 amendment to Federal Rule 41(b). Since that decision the Municipal Court has amended its rule 41(b) so that it is practically identical with the present federal rule, but the scope and effect of the amended rule has not been before us. However, in Nadell v. Nadel], D.C.Mun.App., 131 A.2d 921, we held that the Domestic Relations Branch of the Municipal Court has the power in a proper case to make findings of fact at the close of plaintiff's case because the statute creating that branch specifically provided that it should be governed by the applicable Federal Rules of Civil Procedure, and Federal Rule 41(b) is now generally held to authorize such procedure.

In view of the fact that the trial court has amended its Rule 41(b) to conform to the federal rule we hold that the trial court in an action tried to the court, when the plaintiff has completed the presentation of his evidence, may make findings of fact and render judgment on the merits against the plaintiff.

We add, however that this power should be, sparingly exercised, for we adhere to our former view that sound procedure in most cases requires withholding adjudication on the merits...