# Myers v. Gaither > District of Columbia Court of Appeals · August 10, 1967 · 232 A.2d 577 URL: https://www.frixlaw.com/law-library/cases/9735527 ## Case - **Full name:** Charles R. MYERS and American Motorist Insurance Company, a Corporation, Appellants, v. Frederick O. GAITHER, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** August 10, 1967 - **Citations:** 232 A.2d 577; 1967 D.C. App. LEXIS 183 - **Precedential status:** Published - **Opinion:** Dissent by Hood - **Judges:** Hood, Myers, Cayton - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735527 ## Opinion text HOOD, Chief Judge (dissenting): I cannot agree that Section 4CM-24 of the District of Columbia Code has any application to this case which concerns an automobile collision that occurred in Maryland. Section 4CU424, a part of the Motor Vehicle Safety Responsibility Act of the District of Columbia, by its express terms applies only to situations where a motor vehicle is “operated upon the public highways of the Dis *585 trict of Columbia.” In my opinion the statute has no application to an accident occurring outside the District of Columbia. Indeed, I thought this had been settled in Knight v. Handley Motor Company, Inc., D.C.App., 198 A.2d 747, 750 (1964), where this court, speaking through Judge Myers, held that this same Code Section has no extraterritorial effect, saying: “The statutory language definitely applies the agency presumption only to the District.” The majority opinion says it is applying only the evidentiary clause of Section 40-424. I think it misconstrues the purpose of the section. Its purpose was to create a new liability by making the owner of a motor vehicle responsible for its operation whenever operated with the consent of the owner. This was a change of substantive law. There has been no such change in Maryland where the law still is that the “mere fact that the owner has given permission to the driver to use his car is not enough to make him liable.” State, Use of Shipley v. Walker, 230 Md. 133 , 186 A.2d 472, 473-74 (1962). What the majority calls the “evidentiary clause” of Section 40-424 is an essential part of the Section for proving the vital issue of consent and is not a general rule of evidence. I agree that in a trial in this jurisdiction our rules of evidence apply even though the accident occurred beyond this jurisdiction, but the controlling substantive law is that of the place where the accident occurred. See Molinaro v. Scott Brothers, Inc., 97 U.S.App.D.C. 199 , 229 F.2d 773 (1955). Our general rule of evidence applicable here was established long before the enactment of Section 40-424. In Curry v. Stevenson, 58 App.D.C. 162, 163 , 26 F.2d 534, 535 (1928), it was said: It has come to be the general rule that, in an action for injuries resulting from being struck by an automobile, proof that the automobile was owned by the defendant at the time of the accident establishes a prima facie case for the plaintiff. In other words, proof of defendant’s ownership of an automobile that has been driven on the public highway warrants the inference that it was in his possession, either personally or through his servant, the driver, and that the driver was acting within the scope of his employment. The same general rule applies in Maryland. See Hoerr v. Hamline, 219 Md. 413 , 149 A.2d 378, 381 (1959), where it was said that “there was a presumption that whoever was driving the truck was the agent, servant or employee of its owner acting within the scope of his employment.” Thus there is no conflict between the general rule of evidence in Maryland and the District, and if the majority opinion had placed its reliance on the general rule, perhaps I could agree that appellant’s prima facie case was not overcome as a matter of law by uncon-tradicted and conclusive evidence. I cannot, however, agree that our Code Section 40-424 has any application to this case. 1 With respect to the second theory of liability, the majority opinion concedes that even if appellee were negligent in not removing the car keys, there could be no recovery under Maryland law. It seeks to apply District of Columbia law because, it says, the case has more important contacts with the District. The accident occurred in Maryland and a resident of Maryland was the injured party. I know of no more important contacts. This is no case for “choice of law.” We should follow our previous decisions and apply Maryland law. If the majority opinion stands, the trial court hereafter in every case claiming negligence in another jurisdiction will be faced with the question of what law is applicable, and will have no definite guidelines to an *586 swer the question. Incidentally, it may be noted that only recently Maryland has rejected the choice of law rule. See White v. King, 244 Md. 348 , 223 A.2d 763 (1966). . Even if Section 40 — 124 had any application here, it could not come into play until there had been a determination that appellee was not the driver of his automobile, because this section applies only when the motor vehicle is operated “by any person other than the owner.” See Judge Myers’ dissent in Joyner v. Holland, D.C.App., 212 A.2d 541 (1965). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735527. Public record. Not legal advice.