Simon v. Dew, 1241.
| Decision Date | 08 September 1952 |
| Docket Number | No. 1241.,1241. |
| Citation | 91 A.2d 214 |
| Parties | SIMON v. DEW. |
| Court | D.C. Court of Appeals |
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
This appeal involves the application of the Financial Responsibility Act1 in an action arising out of an automobile accident. The sole issue before us is whether there was sufficient evidence to overcome the statutory presumption of agency created by the Act.
Dew, the defendant, was the owner of five taxicabs. He rented the taxicab involved herein to one Campbell, a licensed taxicab driver, with instructions that she was not to let anyone else drive the taxicab. On the night of the accident, Campbell parked the cab in front of her house with the ignition locked and the doors unlocked. She left her keys on a radio in her apartment which she shared with one Corinne Hawkins. On the day following the accident, Campbell noticed that the front left fender and headlight of the taxicab were damaged. She did not know then how the damage had been done, but later learned from one Burdett that on the night of the accident he had been driving her taxicab and had been involved in an accident. Burdett was a friend of Corinne Hawkins and Campbell did not know whether Corinne or Burdett had taken the keys. On the day following the accident, she found the keys on the radio where she had left them. She testified that she did not have permission to let anyone drive that cab; that that was her agreement when she rented it from the defendant; and that she had never given permission to Burdett to use the cab.
On the basis of this evidence, the trial court, sitting without a jury, found in a memorandum opinion that "the presumption of agency is clearly refuted by the uncontradicted testimony on behalf of the defendent, Dew," and entered a finding and judgment for the defendant. Plaintiff appeals.
The law with respect to the Financial Responsibility Act has been developed in a series of decisions in the United States Court of Appeals for the District of Columbia and in this court. Our most recent decision is that of Milstead v. District of Columbia, D.C.Mun.App., 91 A.2d 93. In that case and the decisions cited therein, certain propositions are made abundantly clear. (1) Once the defendant's ownership has been established, the statute creates a presumption of agency which places the burden of proof as to the question of consent upon the defendant-owner. (2) The defendant-owner overcomes the statutory presumption when he offers uncontradicted proof that the automobile was not at the time being used with his permission. When the presumption is thus overcome, the defendant-owner is entitled to a favorable finding as a matter of law. (3) Where the defendant-owner offers some credible evidence to overcome the presumption, but evidence not strong enough to entitle him to judgment as a matter of law, the question of liability resolves itself into a question of fact.
In this case the judge was the trier of the facts as well as the law. We cannot determine from his memorandum opinion whether, in finding for the defendant, he was finding that the statutory presumption of agency had been overcome as a matter of law or as a matter of fact. However, in order to put the plaintiff's case in the strongest light, we may assume that the trial judge found for defendant as a matter of law. We may then subject defendant's evidence to the rigorous test of destroying "all inferences and presumptions supporting plaintiff and which raises no doubts against defendant." Hiscox v. Jackson, 75 U.S. App.D.C. 293, 127 F.2d 160, 161. If defendant's evidence survives this test, it also, of course, meets the lesser test of providing "some credible evidence" whereby the question of defendant's liability resolved itself into a question of fact.
At the outset it must be made clear that plaintiff's case against defendant rested solely on the statutory presumption of agency. Opposed to this presumption was uncontradicted testimony by the owner that his agreement with Campbell included instructions not to permit...
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...Jones v. Halun, 296 F.2d 597 (D.C.Cir.1961), cert denied 370 U.S. 904, 82 S.Ct. 1249, 8 L.Ed.2d 401 (1962); Simon v. Dew, 91 A.2d 214, 215-16 (D.C.Mun.App.1952). On the other hand, if the plaintiff can establish sufficient facts to discredit the defendant's asserted non-consent, then submis......
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