Schwartzbach v. Thompson.
| Decision Date | 16 August 1943 |
| Docket Number | No. 97.,97. |
| Citation | 33 A.2d 624 |
| Parties | SCHWARTZBACH v. THOMPSON. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Action by James W. Thompson against Edward T. Schwartzbach for damages to plaintiff's automobile which was struck by an automobile owned by defendant. The trial was to the court without a jury, and from a judgment for plaintiff, defendant appeals.
Affirmed. proven helpful on this appeal. It has by stipulation of counsel been designated as the statement on appeal.
On the night in question plaintiff's automobile was lawfully parked for the night, and while so parked was run into by an automobile owned by defendant and operated by one Gladys Benford.
Plaintiff depended upon that part of the Financial Responsibility Act for this District, 1 which provides in part: ‘Whenever any motor vehicle * * * shall be operated * * * 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.’
To overcome the presumption raised by the statute defendant testified that on the evening in question he had left his car locked on a parking lot near his home; that he had not authorized anyone to drive his car on that night; that he knew Miss Benford and that she used his apartment as a place to get her mail; that because of this collision she had been convicted of driving without a permit but that he had not brought any charge against her for using his car without permission; that she was or had been a narcotics addict; at the time of the collision she was on probation, and at the time of the trial she was a prisoner at Occoquan; that she knew where he parked his automobile; that on the night in question at about 11 o'clock he was in bed and she came to the door of his apartment and rang or knocked; that he left his bed and admitted her and that she said she wanted to use the telephone; that he gave her permission to use the telephone and went back to bed and turned over and went to sleep; that the key to his automobile was in a pocket of his trousers which were hanging over a chair near the telephone; that he assumed she had stolen the key out of his pocket; that he also knew Miss Benford's mother; and that on one or more occasions Miss Benford had driven his automobile while he was in it.
Because of the evasive nature of many of defendant's replies the trial judge caused Miss Benford to be subpoenaed and brought from the District workhouse to give testimony, the important parts of which were as follows: On the night in question she was ‘pretty drunk;’ she had another girl with her; she went to defendant's apartment alone and he was sitting in his apartment reading. After an interval of about a half an hour, during which they discussed her troubles, he went to bed. He told her she could stay if she wanted to. She took his automobile key wanted to. She took his automobile key automobile from the parking lot and drove it and was involved in the collision. She said she stayed in the defendant's apartment sometimes and slept on the couch in the sitting room and that her mother also stayed there sometimes and that sometimes her sister had been there too; that the defendant gave her money from time to time; that she had driven this automobile before, sometimes alone and sometimes with defendant; that on some occasions the defendant let her have the key to the automobile; that on previous occasions she had always asked him for the keys but that she didn't ask him for them on this occasion. She remembered after the collision getting out of the car and running. She believed during her visit she had used the defendant's telephone but was not sure about that. She didn't think he had been in the bedroom when she was telephoning. The defendant's keys had been in his trousers pocket over a chair in the bedroom.
Upon this showing the trial judge found for plaintiff.
The question before us is whether the decision was plainly wrong so as to require a reversal, 2 or whether the evidence with the inferences reasonably drawn therefrom justified the finding.
Concerning the...
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...ed.), now found in § 65-38 and § 65-108 (1950 ed.). 15 E. g., Bonbrest v. Lewis, D.C.Mun.App. 1947, 54 A.2d 751; Schwartzbach v. Thompson, D.C.Mun.App. 1943, 33 A. 2d 624; see note 151 A.L.R. 876 16 Appellant objects to the trial court's charge in another respect. After stating that it was ......
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...place, a prima facie case of negligence is established." (Citing Bonbrest v. Lewis, 54 A.2d 751 (D.C.Mun. App.1947); Schwartzbach v. Thompson, 33 A.2d 624 (D.C.Mun.App.1943).) 6 Cf. the statement of Judge Parker in Garrison v. United States, 62 F.2d 41, 42 (4th Cir. 1932): "* * * Where ther......
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Gasque v. Saidman. Same
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