Rosenberg v. Murray, 7502.

• Decision Date: 12 November 1940
• Docket Number: No. 7502.,7502.
• Citation: 116 F.2d 552,73 App. DC 67
• Parties: ROSENBERG v. MURRAY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

73 App. DC 67, 116 F.2d 552 (1940)

ROSENBERG v. MURRAY et al.

No. 7502.

United States Court of Appeals for the District of Columbia.

Argued October 14, 1940.

Decided November 12, 1940.

Isadore H. Halpern, of Washington, D. C., for appellant.

H. Eugene Bryan, of Washington, D. C., for appellees.

Before GRONER, C. J., and MILLER and RUTLEDGE, JJ.

GRONER, C. J.

In 1937 appellees were injured in an automobile collision in Washington City. They brought this action on the ground that their injuries were caused by the negligence of an agent in driving a car owned by appellant.

At the close of all the evidence appellant moved for binding instructions. This motion was denied, and a verdict and judgment for appellees followed. Although appellant did not have a certificate of title, there was, perhaps, sufficient evidence that he owned the offending vehicle and likewise sufficient evidence of the driver's negligence. The only substantial question for decision here is whether the driver was appellant's agent. A statute in the District of Columbia¹ makes the owner's express or implied consent to the operation by another of his vehicle on public highways the equivalent of agency. Forrester v. Jerman, 67 App.D.C. 167, 90 F.2d 412. The testimony was that the car was driven by Dyson, a laborer employed by appellant in his junk yard on the outskirts of Washington City. At the time of the trial, Dyson was in jail and was not produced as a witness, and appellees rely wholly upon the statute, which provides that the proof of ownership of the offending motor vehicle "shall be prima facie evidence that such person the driver operated said motor vehicle with the consent of the owner."

The effect of this provision is simply to shift the burden of proof and to impose on the defendant owner the affirmative duty of proving that the car was not at the time of the accident operated with his express or implied consent. Casey v. United States, 276 U.S. 413, 418, 48 S. Ct. 373, 72 L.Ed. 632. This presumption continues until there is credible evidence to the contrary, and ceases when there is uncontradicted proof that the automobile was not at the time being used with the owner's permission. In the case under consideration appellant testified positively and unequivocally that Dyson had taken the car without his knowledge, authority, or consent, and his uncontradicted statement to this effect, of course, overcame the statutory presumption, just as similar testimony overcomes, as we have often held, the common-law presumption that an agent is on his master's business when he drives his master's car. Curry v. Stevenson, 58 App.D.C. 162, 26 F.2d 534; Peabody v. Marlboro Implement Co., 63 App.D.C. 288, 72 F.2d 81; Simon v. City Cab Co., 64 App.D.C. 364, 78 F.2d 506. In each of these cases the positive testimony which overcame the presumption was that of the owner.

Appellees urge, however, that there were various contradictions in appellant's testimony which affect his credibility, and that in the circumstances the jury had a right to reject it. Appellant first stated that Dyson worked only week days, then corrected himself to say that Dyson did occasionally do some work in the junk yard on Sundays; also that appellant at times described himself as manager, superintendent, and owner of the yard. But we think that in neither of these respects is the contradiction sufficiently substantial to constitute self-impeachment. Nor was his testimony contradicted in any respect material to this case by any other witness. See Schmitt v. Milwaukee St. Ry. Co., 89 Wis. 195, 61 N.W. 834.

There being nothing more to consider, we are of opinion the judgment should be reversed with costs, and the case remanded for a new trial.

Reversed and remanded.

RUTLEDGE, Associate Justice (dissenting).

I think the judgment should be affirmed. I agree that there was sufficient evidence that defendant owned the offending car and that the driver was negligent. By virtue of the statute this created prima facie evidence that the driver operated the vehicle with defendant's consent, and without more was sufficient to establish defendant's liability.

However, defendant himself testified that he did not consent to Dyson's operation of the car and that Dyson was driving it wholly without authority or permission. There was no other testimony bearing directly on the issue of consent. Plaintiffs attempted to produce the driver, but through no fault of their own were unable to do so. The majority hold, in effect, that the jury were required to accept the defendant's...