*1 ROGERS, Before BELSON PAIR, Judges, Senior Judge.
ROGERS, Judge: among things, other to his refusal to allow participate her to in decisions the use about appeal judgment This is an from a hold- money. separa- retirement A formal ing appellant Mary Rose Curtis liable un- agreement prepared; appel- tion never was Safety Responsibility der the Motor Vehicle simply lant left the marital home and all Columbia, of the District of D.C. .Act Code clothes, personal belongings, except her damages 40-408 caused when § daughter. Dur- went live with negligently her husband drove their car. years separation appellant the three appellant jointly The trial court found that home,1 did not return to the marital estranged owned the car with her husband remained, the car and had no contact with presumption arising and that the from such occasionally except Mr. Curtis to visit him ownership was sufficient evidence she had in (approximately years) four times in three consented to his the car at the time suffering hospital, where he was appellant of the accident. Because offered a terminal illness from he died on statutory uncontested evidence to rebut the April leaving in 1979. Since Mr. Curtis presumption of she was entitled to January appellant has never driven Accordingly, accident, appel- the car. At the time of the we reverse. good in lant was health. I. judge, sitting The trial as the trier of underlying facts of this case are not found that was an owner 29, 1977, dispute. in On March presump- of the and that because (Ms. Roach) daughter picked appellant’s arising from such she had (Mr. Curtis) up hospital, husband at the consented to Mr. of it at Curtis’ Municipal Building. drove him to the the time of the accident. renewing While she was inside the car’s plates, negligently license Mr. Curtis drove II. parked
the car into the
rear end
Safety
Section 408 of the Motor Vehicle
by appellee
appel-
owned
Cuff and in which
Responsibility Act of the District of Colum-
Burbridge
sitting.
lee
Appellant
(Act),
(1981), pro-
bia
D.C. Code
§
nowhere near the scene of the accident. vides:
vehicle,
Title to
the car driven Mr.
was Whenever
motor
after
registered
“Curtis, Joseph
passage
subchapter,
oper-
of this
shall be
names of
upon
public highways of
Mary
Uthman &
Rose.” The car had been
ated
purchased
by any person
in
other
1970 when the Curtises were
District of Columbia
consent of the
living together. Payments
married and
than the
owner, express
implied,
operator
in
the car were made in the same manner
in
family
paid, namely,
which other
thereof shall
case of
bills were
agent
of the owner
appellant gave her
check to Mr.
deemed to be
retirement
vehicle,
and the
paid
such motor
who then
the bills out
Nevertheless,
ownership of said motor vehicle shall be
combined incomes.
Mr. Cur-
person
that such
prima
tis
dictated
facie evidence
considered the car to be his and
the con-
operated said motor vehicle with
its use. The car
in
names
was titled
in
sent of the owner.
go directly
so that it
of Mr.
death. From 1970
event
Curtis’
defined in the
The term “owner” is
appellant occasionally
drove
legal title
holds the
Act as “a
who
trips
car on
to the store.
40-402(7). Ap
D.C. Code
of a vehicle.”
name, in addition to Mr. Curtis’
ap- pellant’s
the accident
Fourteen months before
name,
registration certificate of
was on
pellant
left her husband because
How-
the time of the accident.
objected,
the car at
get along.” She
“could not
residing
Mr. Curtis was
crowded.
returned to the marital home
living
time since was
prior
house at that
January
months
to Mr. Cur-
several
hospital.
death,
he was not in
daughter's
sister whenever
was too
tis’
because her
home
ever, “holding
registration
Moreover,
certificate
so.
found,
as the
trial
at the time of an accident is not conclusive
comparative
health of the
ownership
as to
within the
mean
Curtises at the time of the
appel-
v. Keyes,
ing.”
Johnson
position
lant was in a better
than Mr. Cur-
Other attributes of
tis to exercise control over the car.
use,
possession,
include
and control. Gas
question, therefore,
is whether
que
Saidman,
successfully has overcome the
*3
1945).
In Mason v. Automobile Finance
that,
presumption
at the time of the acci
Co.,
284,
287,
32,
73
121 F.2d
dent,
impliediy
she
consented to Mr. Curtis’
(1941),
35
Appeals
U.S. Court of
for the
Holland,
of the car. Joyner v.
operation
District of Columbia Circuit
a
described
car
541,
(D.C.1965) (“in
212 A.2d
542
a co-own
owner as
power
one who had the
and the
ership of an
implied
automobile there is an
legal right
permit
by
its use
another:
operation
mutual consent
to the use and
purpose of
place
the statute was to
[T]he
owner”);
Lancaster v.
thereof
either
liability upon
position
in a
Canuel,
(D.C.1963) (“The
immediately
prevent
to allow or
the use
effect of
impose upon
is to
[§ 40-408]
of the vehicle and
by giving
a
duty
proving
owner the affirmative
lawful and
prohibi-
effective consent or
being
his car was not
driven with his con
tion to its
by others. The ob-
sent.”). To determine
pre
whether
ject
giving
was to control the
of consent
overcome,2
sumption of consent has been
it
irresponsible
drivers
the one hav-
long
has
been held that:
power
impose
than to
(1)
ownership
Once the defendant’s
has
liability upon
having
legal
one
a naked
established,
been
the statute creates a
right
title with no immediate
of control.
presumption
agency
places
judge’s finding
trial
appel
proof
question
burden of
as to the
lant was an owner of the car within the
(2)
upon
the defendant-owner.
meaning of the
supported by
Act is
sub
The defendant-owner overcomes the stat-
stantial evidence of record and is not clear
utory presumption when he
of-
[or she]
ly erroneous.
Keyes,
See Johnson v.
su
fers uncontradicted
that the auto-
pra,
in no condition to
findings are not relevant to consent. Ma-
he was sick and lost so much
“[b]ecause
son,
supra, U.S.App.D.C. at
weight
everything.”
It is clear that at
regard
F.2d at 35. With
appellant thought
the time of the accident
only “I
fact that
stated
believe the
drive, being
too ill to
Curtis was
together
Ms. Curtis owned the automobile
condition,
*4
weakened
and had not consented
Curtis,
with Mr.
that that was sufficient
Moreover,
doing
appellant
to his
so.
testi-
from Ms. Curtis to Mr. Curtis to
consent
accident,
day
fied that on the
she
vehicle,
operate this motor
so far as the
daughter
going
was
her
aware
was
to drive
requirement of the statute is
con-
[sic]
Mr.
Curtis home from the
cerned, at least in so far as the two of them
car,
larger
Curtis’
which was
than Ms.
conclusory
are concerned.” The
statement
everyone
Roach’s car. Thus it is clear that
appellant
that
was liable because she was
Curtis,
involved
Mr.
intended
who was ter-
car
an owner of the
“and she had consent-
weak,
ill
minally
very
to remain a
permitted
ed and
his use of the car at the
passenger in
pas-
the car. And he was a
time in
under the circumstance as
senger only, until he took matters into his
appears
at that time
to be
they existed
...”
daughter
own hands while his
was else-
or a factual
either a misstatement
law
inability
where. Mr.
Curtis’
to control the
erroneous. “Mak-
ing ownership ‘prima
car when he took
facie evidence’of con-
the wheel corroborates
dispense
require-
appellant’s opinion
sent does not
that he was unable to
only
way
It affects
ment of consent.
appellant’s testimony
drive. Since
un-
was
Jones
may
proved.”
controverted,
be
it was sufficient to overcome
statutory
presumption of consent aris-
Appellant’s testimony that she and
at 598.
Therefore,
ownership.3
she was
together
Mr. Curtis had not lived
for four-
judgment
entitled to
that she
teen months before
Appellee’s contention that there was
during
sepa-
the car
had never driven
con
sufficient evidence to show
to his
ration,
she had not consented
that
sent because
Mr. Curtis
ill
he was too
to
use of the car because
drive,
arrangements
used the car
the time
lived
had been
and that
together
point;
misses the
relevant
else to drive him while
made for someone
car,
undisputed by
time is the time of the
and not
in the
was
he was
therefore,
and,
successfully
Stumpner
v. other evidence
fourteen months earlier.
Harrison,
of con-
(D.C.1967)
statutory presumption
A.2d
rebutted the
Baines,
U.S.App.D.C.
vehicle the other co-owner. appel- judge’s ports the trial 541, Holland, Joyner see v. 212 A.2d hus- to her implicitly had consented lant (D.C.1965). implied This consent does no indica- car. There is use of the band’s merely not arise appellant ever with- the record 40-408, agency created D.C.Code but she had ongoing consent which drew rather is inherent the mutual entitlement ownership, given inception ownership enjoyed by to the benefits by years of us- confirmed and which was co-owners. age. Appellant and husband by appel- consent created fifty years, and for almost married co-ownership lant’s her husband pooled from their purchased the automobile presented her denial inconsistency an the incident years before finances seven Baines, consent. See v. Williams Although gave this case. rise to Williams, (D.C.1969). ap- A.2d 762 drove the car her husband appellant urged she had rebut- pellant owner years of first five presumption by her un- ted the primary its driver. her husband testimony denying consent. contradicted that con- unmistakably establishes record disagreed. We held This court Id. at 763. trial, appeal. part of the record testify Although appellant 2. did court, and deposition presented to the trial tinuing mutual consent to drive existed for years.
several STREET, INC., Appellant, 1827 M that, testify While did illness, of her husband’s she would not COLUMBIA, Appellee. DISTRICT OF agreed have at the time of there is no evidence in the No. 85-688. record that she had ever communicated to him longstanding withdrawal of her Appeals. District of Columbia Court granted consent. A the fact of 4, Argued Feb. co-ownership by many years and confirmed usage presumed should be to continue Decided Jan. unless it is withdrawn. Amicar Rent- Cf als, Moore, (D.C. Inc. v. 294 A.2d 1972) (filing complaint returning for not prior
rental car revoked consent to drive
car); Neary Corp., F.Supp. v. Hertz (D.D.C.1964)(notification to lessee
not to employee negated previ- let drive car consent).
ous
This is not a case where the sued legal
held naked title to an automobile for
the convenience of Spindle the driver. See Reid, (D.C.1971); 277 A.2d Johnson, (D.C.
Busk v.
1966); Keyes, Johnson v.
(D.C.1964). was, majority as the
concedes, an owner in the full sense of the
word. Nor is this a case a non-own scope
er driver exceeded the of his limited drive,
authority to and thus drove without
the owner’s consent. Lancaster See v. Ca
nuel, In
stead, against full-fledged this is a suit co-purchaser
owner and of an automobile
who used it and benefited from its use for began years.
a number of When she separately spouse,
live from her co-owner
she did not surrender or her
right to control the Nor did automobile. *7 longstanding
she ever revoke the automobile. Under these
circumstances, policy I think the served Safety Responsibility
the Motor Vehicle
Act calls for the car’s rather than automobile, injured by least, resulting
sustain the loss. At the presented
set of circumstances the trial regard
court with a contested issue of fact and the court’s resolution
that issue was not erroneous.