Commonwealth v. Dickey

In Rodney v. Staman, 371 Pa. 1, husband and wife were both killed in an auto accident. There was no evidence the husband was driving the car at the time, but it was shown that he was its owner. The court stated: “That fact affords a rebuttable presumption that he was the driver of the automobile at the time of the accident. . . . While there is no decision in this State directly in point, in Limes v. Keller, 365 Pa. 258, 260, 74 A. 2d 131, Mr. Justice Stern said, ‘. . . there was enough circumstantial evidence [as to who was driving], even apart from the rebuttable presumption that the owner of the automobile was operating it. . ,’, and cited Bastian v. Baltimore & O. R. Co., 144 F. 2d 120 (C. C. A. 3). In that case, the law of Pennsylvania on the question of the presumption was a matter for the Federal Court’s ascertainment and application. It was there said (p. 123) that ‘It is the law of many States that an owner is presumed to be in charge of and have control of his property, even if that property be a vehicle.’ To this was coupled a footnote containing a discussion of the provision of The Vehicle Code (75 PS §739) that, in proceedings for violations of the Code, the license plate shall be prima facie evidence that the owner was at the time operating the vehicle. The footnote continued, ‘We think that this statute is suggestive of what a Pennsylvania court might hold were it necessary to decide in a civil case who was the driver of a car and no fact other than ownership of the vehicle was presented.’ Judge Stern’s citation of the Bastían case gave his dictum in the Limes case the weight of a considered pronouncement on the Pennsylvania law which we follow now.”

While the quotation from the Bastían case uses broad language and suggsts that ownership of the vehicle in itself presumes operation, all the cases referred to had in evidence the fact that the owner was present in the vehicle at the time of the accident. It is *715questionable, therefore, whether the Supreme Court would hold that absent proof of such presence in the vehicle, it would indulge in the same presumption or inference.

In 49 A. L. R. 2d 456, it is stated: “Cases involving charges of parking violations present peculiar difficulties as to proof of the person who actually operated the car at the time the violation was committed, since it is clearly impractical to provide sufficient police to wait at each improperly parked vehicle until the operator returns. Recognition of this difficulty has led' to judicial approval of a presumption or inference that the owner of a car improperly parked may be regarded as at least prima facie responsible for the violation.”

The Court of Appeals pointed out that although presumptions in criminal law need not necessarily be statutory, they often take that form. Since there is no such statutory authority in New York as in some States (the court cited Pennsylvania as having a statute, 75 PS §739), it indicates that the legislature felt there was no *716need for it. Said the court: “Making rules for traffic control is peculiarly a legislative job.”

Nor did .the court think that proof of ownership supports an inference of driving, stating: “We all know that many a passenger car is customarily driven at various times by various persons, we know that many a person owns more than one passenger automobile, we know that some owners are not licensed operators, and we are informed that there are outstanding in this State at least one million more automobile operators’ licenses than passenger automobile registrations. From all of that it follows, we think, that it is hardly a normal or ready inference or deduction that an automobile which speeds along a highway is being driven by its owner, and by no other person.”

Judge Fuld in a dissenting opinion felt that the conviction should be sustained on the authority of the Rubin case, that a rebuttable inference of driving arises from ownership; “that it is not always the owner of a speeding car who is at the wheel does not ipso facto invalidate the presumption. The basic test is whether common experience supports the probability, not the certainty that if the first fact is true, the second is also true.”

However, the majority opinion seems to be the prevailing view, as stated in 49 A. L. R. 2d 459: “Where offenses involving the actual driving of the car at the time of the offense are concerned, the courts, at least in the absence of a statute or ordinance providing for the presumption or inference, have usually held that it cannot be inferred that the owner of the car, merely because of his ownership, was guilty.”

The presumption here created by .the legislature is self-limiting in its effect, so that defendant’s testimony and denial, whether trustworthy or not, caused the presumption to vanish. It is, in its effect, of the “bat” and “bee variety,” i.e., like “bats flitting about in the twilight and then disappearing in the sunshine of actual facts,” or “Maeterlinck’s male bee, which after functioning, disappeared”: Wyckoff v. Mutual Life Ins. Co. of N. Y., 173 Ore. 592, 597, cited in Levin, Penna., and the Uniform Buies of Evidence, 103 Univ. of Pa. L. B. 1, 12.

Though the basic fact of ownership, notwithstanding the rebuttal of the statutory presumption, still remains in evidence, it does not in itself have sufficient probative value to support the jury’s inference of driving: People v. Hildebrandt, supra, 49 A. L. R. 2d 459, supra.