Simmons v. Brooks

• Decision Date: 11 June 1934
• Docket Number: No. 6133.,6133.
• Citation: 63 App. DC 293,72 F.2d 86
• Parties: SIMMONS et al. v. BROOKS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

63 App. DC 293, 72 F.2d 86 (1934)

SIMMONS et al. v. BROOKS.

No. 6133.

United States Court of Appeals for the District of Columbia.

Argued May 14, 1934.

Decided June 11, 1934.

Henry I. Quinn, of Washington, D. C., for appellants.

John S. Barbour, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from a judgment recovered in an action for damages for personal injuries sustained in an automobile accident.

In the declaration the plaintiff alleged that the defendants, Sol A. Simmons, Louis A. Simmons, and Abraham Simmons, were partners trading as the Simmons Motor Company; that in April, 1931, plaintiff was driving his automobile upon a public highway in Stafford county, Va.; that at the same time one J. F. Letcher was driving a car on the same road, slightly ahead of the plaintiff and going in the same direction; that plaintiff and Letcher were driving with due care; that as they were going up a grade which curved to their left a third automobile, belonging to the defendants, then and there operated by one J. R. Proctor as the agent and employee of the defendants, approached them from the opposite direction; that Proctor carelessly and negligently drove the defendants' car upon the wrong side of the road and at a high and dangerous rate of speed and collided first with the automobile operated by Letcher and immediately thereafter and in consequence thereof with the car operated by the plaintiff, whereby plaintiff suffered serious injuries for which he prayed judgment in damages.

The defendants for their plea admitted their ownership of the automobile driven by Proctor at the time of the accident and the fact that it was in collision with the automobile owned and operated by the plaintiff at the time and place alleged in the declaration; but denied that Proctor was operating the automobile at that time as their agent or employee or that he was then engaged in any manner in and about their business; and they averred that the collision was due solely to the negligence of Letcher in operating his automobile.

The case was tried to the jury and a verdict was returned for the plaintiff. A motion for a new trial was overruled by the court and judgment was entered for plaintiff upon the verdict. Whereupon the present appeal was taken.

It is disclosed by the record that the plaintiff introduced testimony in chief describing the collision of which he complained, together with the injuries which he suffered because of it; also testimony tending to show that the car driven by Proctor at the time of the collision had on it a dealers' tag for the year 1931, which had been issued to the defendants by the District of Columbia, and the regulations in force in the District at the time of the accident, which provided that such dealers' tags should not be transferred from one vehicle to another, nor be loaned to another by the person to whom issued, but should be applied to automobiles held by dealers for sale or demonstration only; and that under the laws of Virginia it was lawful for a car with the dealers' tags thereon to be operated over the highways of the state of Virginia without registering the vehicle under the laws of Virginia, but only when such machine was being used by the dealer or his agent for sale purposes. The plaintiff then rested.

At the conclusion of the plaintiff's evidence and at the close of all the evidence, the defendants moved for a directed verdict claiming that plaintiff had failed to introduce any proof that the car operated by Proctor which collided with the plaintiff's car was being used on business of the defendants or operated by him as agent or employee of defendants. The court overruled the motion to which the defendants excepted and this ruling is assigned as error by the appellants.

We think this assignment of error is not well taken. The fact that the car at the time of the accident was owned by the defendants who were dealers in automobiles and used cars and bore the dealers' license tags issued to them, which they could not lawfully use except upon automobile held by them for sale or demonstration purposes, was sufficient to raise an inference that Proctor, the driver, was acting as an employee of the company with authority to demonstrate the car for them; and this presumption obtains until overthrown by credible testimony to the contrary. Callas v. Independent Taxi Owners Ass'n, 62 App. D. C. 212, 66 F.(2d) 192. But if the presumption be overcome by undisputed proof to the contrary, the question becomes one for the court, and not the jury. Curry v. Stevenson, 58 App. D. C. 162, 26 F.(2d) 534. If, however, the evidence is reasonably subject to contradictory interpretations, the question of liability of the defendants is for the jury. Tischler v. Steinholz, 99 N. J. Law, 149, 152, 122 A. 880.

The record discloses without contradiction that the defendants at the time in question were engaged in the business of selling automobiles including used cars; that they were in possession of dealers' license plates or tags, as alleged in the declaration, issued to them by the District of Columbia as identification tags necessary to their business as such dealers, which they were entitled to use upon automobiles for sale or demonstration purposes, but which they were not entitled to use for any other purpose. The defendants testified that they had never permitted the use of such license plates for any purpose except to be placed upon cars for sale or demonstration; that Harold Simmons was a relative of the partners but was not himself a partner; that he looked after the used car business, but had no authority to lend cars to anybody for pleasure purposes or private...