Haser v. Pape , 77 N.D. 36 ( 1949 )

I concur in the conclusions reached in the opinion prepared by Judge Gronna: — that the trial court erred in directing a verdict for the defendant Yellow Cab Company and that the judgment appealed from must be reversed and the case remanded for a new trial.

The defendant, Yellow Cab Company, was licensed to operate as a carrier of persons in the City of Jamestown and was authorized pursuant to certificate issued by the Public Service Commission of North Dakota (NDRC 1943, Sec 49-1801), to operate as a common carrier of persons in certain territory including the whole of the County of Stutsman in which the City of Jamestown and the town of Woodworth are both located. In regulating the public establishment of common carriers "the great object of the law was to secure the utmost care and diligence in the performance of their important duties — an object essential to the welfare of every civilized community." N YC. R.R. Co. v. Lockwood, 17 Wall 357, 377, 21 L ed 627, 639. The authority conferred upon such carriers is granted to effect public purposes. The obligations of such carriers arise from the public nature of the employment, and are "founded on the policy of the law for the protection of the persons and property of the public, which must of necessity be committed, to a very great extent, to the care of public carriers." Cleveland P. A. R. Co. v. Curran, 19 Ohio St. 1, 12, 2 Am Rep 362, 366. While a contract is essential to the formal relationship of carrier and passenger the obligations of such common carrier to persons whom it undertakes to carry or who are lawfully on a conveyance operated by the carrier and accepted for carriage by the employee in charge of such conveyance exists independent of contract or contractual relationship between the parties. 10 Am Juris, Sec 1239, pp 159-160; 3 Shearman Redfield on Negligence, Revised Edition, Sec 494, p 1232; McNeill v. Durham C. R. Co., 135 N.C. 682, 47 S.E. 765, 67 LRA 227; Philadelphia R. R. Co. v. Derby, 14 How 468, 485, 14 L ed 502, 509. See, also, 4 Williston on Contracts, Revised Edition, Sec 1113.

A person may have the status of a passenger although no contractual relationship exists between him and the carrier. 13 CJS Sec 549, p 1053, Sec 562, p 1070. Thus a person who is carried gratuitously (13 CJS Sec 549, p 1053; 2 Michie, Carriers, Sec 1271, p 1566; 10 Am Juris, Sec 967, p 34; Jacobus v. Railway, 20 Minn. 125, 18 Am Rep 360) or a person, who travels on a free pass issued in violation of law and which the carrier was prohibited from issuing or the passenger prohibited from using or both, is not deprived of the rights. of a passenger or of the protection to which he is entitled as such. 10 Am Juris Sec 969, p 35; 13 CJS Sec 550, p 1054; Bradburn v. Whatcomb County R. L. Co., 45 Wash. 582, 88 P. 1020, 14 LRA NS 526; Gabbert v. Haxkett, 135 Wis. 86, 115 N.W. 345, 14 LRA NS 345; John v. N. P. R. Co., 42 Mont. 18, 111 P. 632, 32 LRA NS 85; McNeill v. Durham C. R. Co., supra. This is so even where a person has accepted and is being carried on a free pass issued by a common carrier in violation of an act of Congress which made it a misdemeanor for the carrier to give, and for the traveler to use, any such free pass in interstate transportation. Southern Pacific Company v. Schuyler, 227 U.S. 601, 57 L ed 662. And so a person traveling unlawfully on a conveyance of a common carrier on Sunday under a contract illegal and void because made, and to be performed, in violation of a Sunday law has the status of a passenger and the carrier owes to him the same duty that it owes to passengers carried under a lawful contract. 2 Michie, Carriers, Sec 2191, p 1589; Carroll v. State Island R. Co., 58 N.Y. 126, 17 Am Rep 221; Opsahl v. Judd, 30 Minn. 126, 14 N.W. 575.

"A person who is accepted or invited to ride as a passenger without the payment of fare and who does so in good faith has the status of a passenger. This rule applies to a child so accepted or invited, or who is in charge of another who does pay fare." 13 CJS Sec 549, p 1053.

"It is enough, to fix the liability of a carrier for injuries occasioned by the negligence of its servants, that the passenger be lawfully on the train, whether by reason of having paid his passage money or by permission or invitation of officers or agents of the company, and such a passenger is entitled to the same degree of care as if he had paid his fare." 2 Michie, Carriers, Sec 2169, p 1565.

Ordinarily a common carrier can act only through its agents and employees, and the obligations which a carrier owes to passengers, including the obligation to protect a passenger from injury by the carrier's employees, must usually be discharged by means of employees engaged in carrying out its activities in transportation of persons. 13 CJS Sec 689, p 1273. It has been said that as to the care, protection and control of passengers on a passenger train, the conductor within the real or apparent scope of authority is the alter ego of the carrier and the company is responsible for his acts, Davis v. Jones,34 Ga. App. 7, 129 S.E. 892; and that a bus driver in sole charge of a bus in the care and protection and control of the passengers is clothed with all the bus company's authority with respect to the duties which the carrier owes to such passengers. Interurban Transportation Co. v. Reeves, 194 Ark. 321, 108 S.W.2d 594; South Plains Coaches v. Box, Tex Civ App, 111 S.W.2d 1151. These holdings seem peculiarly applicable to taxicab carriers, taxicab drivers and taxicab passengers. Ordinarily a taxicab driver has complete charge and control of the cab. Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N.W. 748, 31 A.L.R. 1197; Chaput v. Lussier, 132 Me. 48, 165 A. 573; Ramsden v. Boston Albany R. Co., 104 Mass. 117, 121; Wilton v. Middlesex R. Co.,107 Mass. 108, 110. Often he is the only representative or employee of the company with whom a person who seeks transportation or who becomes a passenger in a taxicab comes in contact. The taxicab driver frequently, if not generally, solicits business for his employer, and invites persons to become passengers. He accepts passengers who are transported, collects their fares, and is in charge of the operation of the cab during the entire course of the transportation. He frequently calls for the passengers at some specific place and transports him to a place designated by the passenger. He is vested with authority to enter into the relationship of carrier and passenger and generally must act for the company in discharging the duties and obligations which the law imposes upon the company when it accepts a person for carriage. Obviously he is not authorized by the company to commit any wrongful act against a passenger or against one who is accepted for passage. Wrongful or malicious acts on the part of the cab driver are outside the scope of his authority; but this does not relieve the company of liability for wrongful or malicious acts on his part which are injurious to one who has entrusted himself for carriage to the common carrier whose representative he is, and which are violative of the obligations which the carrier owes to such person.

"In all instances where it appears that the employment of the principal afforded the agent or employee the means or opportunity, which he used while so employed, to commit an injury on a third person, the principal must be held liable. Expressed differently, the wilful trespass or injury of the agent, derived from the authority confided to him by the principal as a source of power in the exercise of his master's employment, will make the principal responsible. The applicability of this rule is unaffected by the fact that the act was done in excess of authority or in disobedience of the carrier's orders or that the conventional relationship of carrier and passenger did not exist at the time the injuries were sustained." 10 Am Juris Sec 1122, pp 106-107.

The rule supported by the great weight of authority is that the liability of a common carrier for injuries to passengers occasioned by the wrongful, wilful or malicious conduct of its servants rests upon the legal obligation imposed upon the carrier to protect its passengers while in its charge from wilful or negligent injury. 10 Am Juris, Carriers, Sec 1123, p 108, Sec 1448, p 264; 3 Shearman Redfield on Negligence, Revised Edition, Sec 519, p 1327 et seq. See, also, 13 CJS p 1275. "Accordingly it is of no consequence when the wrong is committed by the carrier's own servant that the act bears no connection or relation with the duties of such servant to the carrier and is not committed as an incident to the discharge of any duty, but is entirely outside the scope of his employment. The carrier is liable in such cases because the act is violative of the duty it owes through the servant to the passenger, and not because the act is within the scope of the employee's work. It is further immaterial that the act may be one of private retribution on the part of the servant, impelled by personal malice toward the passenger and without any attribute of service to the carrier. It has been viewed as wholly inapt to apply the doctrine of scope of employment, as ordinarily understood, to such an act. Its only relation to the scope of the servant's employment rests upon the disregard and violation of a duty imposed by the employment." 10 Am Juris, Carriers, Sec 1123, p 108.

The events which gave rise to this action occurred October 27, 1947. The plaintiff, Ardene Haser, was at that time fourteen years of age and attended high school in the town of Woodworth. Her home was with her parents on a farm some eleven miles from Woodworth but she was boarding and rooming with a Mrs. Stoering at Woodworth while attending school. She had spent the week-end at home with her parents and a younger brother and sister. She returned to Woodworth on the morning of Monday, October 27th. Her younger sister, then some two years of age, has a chronic heart condition, and on the morning when Ardene left for Woodworth the sister was also ill with a sore throat and had been "fussing" more or less during the night. In the evening of October 27th shortly after six o'clock the defendant Pape drove the taxicab which he was operating to the house where Ardene Haser was rooming. Ardene was eating her supper and Mrs. Stoering, the woman with whom Ardene was rooming and boarding, went to the door. The defendant Pape informed Mrs. Stoering that he desired to talk with the plaintiff Ardene Haser. Mrs. Stoering informed Ardene of this fact, and thereupon Ardene went to the door and the defendant Pape then told her that her little sister was very sick and had to be taken to Minneapolis and that her folks "had phoned the taxicab company, Yellow Cab, and told them to send a cab out to get her and take her home."

It is not unusual for one person to order a taxi to call for some other person at a designated place and transport such person to a designated place, or to some place to be designated by the person to be transported. Parents frequently order a taxi to call for a child and bring the child home. A taxi driver who responds to such call and who calls for the child and transports him to the designated place is not acting outside of the general scope of his employment and the taxicab company owes to such child all the duties and obligations which it owes to a passenger. This would be true even though the driver in calling for and inviting the child to ride and transporting him was acting contrary to his instructions from the company. Wilton v. Middlesex R. Co., supra; 2 Michie, Carriers, Sec 2173, pp 1570-1571.

Ardene believed the statement of the taxi driver that her parents had sent the cab to take her home. She did not even finish eating her supper but left at once and entered the taxicab as she supposed for transportation to her home. After she entered the cab the events took place which are set forth in the opinion prepared by Judge Gronna and need not be repeated here.

As has been said the defendant Yellow Cab Company was a common carrier of persons in certain territory which included the City of Jamestown, the town of Woodworth and the territory lying between Jamestown and Woodworth. The defendant Pape was, and for some time had been, one of the regularly employed drivers of defendant's taxicabs. In the afternoon of October 27, 1947, the defendant Pape was assigned to drive one of the cabs of the defendant Yellow Cab Company. He was in complete charge of the cab, and it was within the general scope of his employment to call for and accept and transport passengers. Driving this cab he went to the house at Woodworth where the plaintiff was rooming and informed her that her parents had telephoned the defendant cab company to send a cab out to get her and take her home. He thus in a most persuasive manner invited her to become a passenger in the cab he was driving and to be transported to her home. The fact that the driver violated instructions or regulations of the company in the operation of the cab and that he was animated by ulterior motives of self interest did not affect the liability of the company for the wrongful or malicious acts on his part toward one who in good faith and at his invitation as the driver of the cab had placed herself in his charge as a passenger of the defendant, Yellow Cab Company. Wilton v. Middlesex R. Co., supra; Chaput v. Lussier, supra; Ramsden v. Boston Albany R. Co., supra; Chattanooga Rapid Transit Co. v. Venable, 105 Tenn. 461, 58 S.W. 861, 51 LRA 886; Louisville N. R. Co. v. Weaver, 108 Ky. 392, 22 Ky L Rep 30, 56 S.W. 674, 50 LRA 381; 10 Am Juris, Sec 1122, pp 106-107, Sec 1123, p 108.