Solomon v. Wong

  This is an action for damages for personal injuries suffered by
the plaintiff in a collision between two automobiles, one owned
and driven by the defendant Keliinoe, in which plaintiff was a
guest passenger, and the other owned by the defendant Wong, which
was, at the time of the

collision, being driven by one Henry E. Gomez. The allegation in
the complaint, designed to charge the defendant Wong with
responsibility for the alleged negligence of the driver of his
automobile, is that the defendant A.Y. Wong "through his duly
authorized agent and servant, acting within the scope of his
employment," was operating said automobile at the time of said
collision. A consideration of the specific acts of negligence
attributed to the two drivers is not necessary to a determination
of the issues presented by the defendant Wong's bill of
exceptions before us.
  At the trial the plaintiff called for and had produced a
written agreement between the defendant Wong and the driver Gomez
under which Gomez was to use the automobile which he was driving
at the time of the collision, said agreement being as follows:
"To whom it may concern: I do hereby agrees to used Mr. Wong's
car as a taxicab in my business; gas  oil to be supplied by him;
for which consideration, I am to pay him 60 (sixty-per-cent) of
what I earns and also damages done to others, personally or
materially, while using his car. (Wong's) and also damages
expenses on Mr. Wong's car.
Witness.                                  Signed
    Ruth C. Wong                              Henry E. Gomez
Dated Nov. 11, 1934.                      A Y Wong"
  The plaintiff also called as witnesses the defendant Wong and
one Gladys Won, who was at the time of said accident in the
employ of the defendant Wong as a dispatcher. These witnesses
gave evidence tending to show additional terms of the agreement
between the defendant Wong and the driver Gomez. From this
evidence it appears that the defendant Wong owned, managed and
operated the Two Bit Cab Company, a combination taxi

stand and service station; that there were some ten cabs
operating from said stand, seven or eight of which were owned by
the defendant Wong, one of which number was the cab operated by
Gomez; other operators rented stalls from Wong and operated their
own cabs; Wong advertised the rates per mile charged by all cabs
operating from his stand and employed a dispatcher who assigned
calls to the various cabs in rotation, there being no obligation
on the part of an operator to take the call in his turn. If,
however, he did not take the call when his turn came he was
placed at the end of the list. From the evidence of these
witnesses it appears that Wong permitted Gomez to make special
arrangements with clients and that at the time of the accident in
question Gomez had special arrangements with a tourist client
living at the Royal Hawaiian Hotel who was paying him $50 a week
for the use of his cab. It also appears that at the time of the
accident he was responding to a call from this client. Plaintiff
also elicited from the defendant Wong testimony as to his
agreement with Gomez which tended to vary some of the terms of
the written agreement. Wong testified that the dispatcher kept a
record which showed the time the cab went out, the time it
returned, the mileage it had traveled while out and that payments
were made to him on the mileage basis, that is, he was paid 60%
of the advertised rate, based on the mileage involved in the
call, and that whenever Gomez took the car out he paid to Wong
60% of the advertised rate regardless of whether or not there was
a fare. Miss Won, however, testified that when Gomez returned
from a call he paid to Mr. Wong 60% of the fare and retained 40%.
She also said that under the special arrangement with the tourist
client Mr. Wong was paid 60% of the $50 per week retainer. Mr.
Wong's testimony is to the effect that he had nothing whatever to
do with the contract with the tourist and was not interested in
the money

which Gomez was receiving from the tourist and that his
compensation for the use of his cab was on the mileage basis, not
only for casual calls but while being used by the special client.
It is undisputed that Gomez paid for the repair of the damage to
Wong's car occasioned by the collision, in accordance with the
terms of the written agreement.
  At the close of the plaintiff's evidence the attorney for the
defendant Wong moved for a directed verdict on the ground that
"there has been no showing that Henry Gomez, the driver of the
car, was a servant or agent of A.Y. Wong; there has been no
showing that as such agent he was on his master's business; there
has been no showing that this was done within the course of his
employment, or that he was in any manner under the control or
direction of A.Y. Wong. The allegations of the complaint are to
the effect that all of these acts were done by the defendant A.Y.
Wong through his duly authorized agent and servant, acting within
the scope of his employment." The motion for a directed verdict
was denied by the court, the court stating that he denied the
motion "on the authority of 4 Berry, section 4.479 and 4.480, and
Ruling Case Law, I think the volume is 27, on partnership,
section 126, relating to the joint and several liability of the
joint venture or partnership amounting to joint venture, or joint
venture amounting to partnership, whichever is the way of stating
it."
  Plaintiff's requested instructions Nos. 3, 4 and 6, given over
the objection of the defendant, read as follows: Instruction No.
3: "You are instructed that if you find from the evidence that
Henry E. Gomes was negligent in the operation of the automobile
driven by him at the time and place set forth in the complaint,
and if you further find from the evidence that the said Henry E.
Gomes and the defendant A.Y. Wong were engaged in the taxi
business

as joint adventurers or as partners, and that the negligence of
the said Henry E. Gomes was the proximate cause of the injury to
the plaintiff, then you must find for the plaintiff and against
the defendant A.Y. Wong. If you find from the evidence that the
defendant William Keliinoe was negligent in the operation of his
automobile at the time and place mentioned in the complaint, and
that the negligence of the said defendant William Keliinoe was
the proximate cause of the injury to the plaintiff, then your
verdict must be for the plaintiff and against the defendant
William Keliinoe." Instruction No. 4: "You are instructed that as
a matter of law partners or joint adventurers are jointly and
severally liable for the tortious acts of anyone of the members
committed in the performance of the partnership business or the
business of a joint adventure." Instruction No. 6: "If you find
from a preponderance of the evidence that the defendant A.Y. Wong
was the owner of the automobile driven by Henry E. Gomes and that
the said A.Y. Wong did hire the same to the said Henry E. Gomes
under an arrangement whereby the Defendant Wong was to share in
the proceeds of the business and that the Defendant Wong at the
time and place in question was rendering services in connection
with the business then the Defendant Wong and Henry E. Gomes are
joint adventurers."
  The court refused to give the defendant Wong's requested
instruction No. 1, which reads: "There is no evidence in the
record in this case upon which reasonable men may differ as to
the non-liability of Defendant, A.Y. Wong, for the injuries
suffered by Plaintiff in this case. You are accordingly directed
to return a verdict against the Plaintiff and in favor of
Defendant, A.Y. Wong." The court also refused to give his
requested instruction No. 11, as follows: "Before you can find a
verdict for the Plaintiff and against the Defendant, A.Y. Wong,
you must be satisfied from a preponderance of the evidence that
the relation

of master and servant existed between A.Y. Wong and Henry E.
Gomes at the time of the accident, and unless you so find, you
must bring in a verdict in favor of A.Y. Wong and against the
Plaintiff." Defendant Wong requested the court to give the
following instruction, with the exception of the words included
in brackets, which were inserted by the court as an amendment and
given as amended over the objection of the defendant Wong: "You
are instructed that to determine the question of liability of the
Defendant, A.Y. Wong, for the alleged negligent act of Henry E.
Gomes, you must be satisfied from a preponderance of the evidence
that said Henry E. Gomes was negligent, that his negligence was
the proximate cause of the injuries alleged by Plaintiff, that
the relation of master and servant [or joint adventurer or
partnership] existed between A.Y. Wong and Henry E. Gomes at the
time of the accident and that the alleged negligent acts of Henry
E. Gomes were within the scope of his authority as the alleged
servant of A.Y. Wong [or in furtherance of a joint adventure or
partnership business], and that the Plaintiff was not
contributorially negligent."
  The court gave defendant Wong's requested instruction No. 13,
as follows: "You are instructed that to constitute the relation
of master and servant for the purpose of fixing liability for
alleged negligent acts done by the servant in the scope of his
employment three things are indispensible: (1) the right to
select the person claimed to be a servant; (2) the power and duty
to control the alleged servant while in his employ; (3) the right
to discharge the alleged servant for misconduct, neglect of duty,
or other cause. If you are not satisfied from a preponderance of
the evidence that all three elements are present in the alleged
relationship of master and servant between A.Y. Wong and Henry E.
Gomes, then you will return your verdict in favor of A.Y. Wong on
such issue."
 
  The case having been submitted to the jury upon the foregoing
instructions, it returned a general verdict in favor of the
plaintiff and against the defendant A.Y. Wong for damages in the
sum of $2500, and judgment for that amount was entered against
said defendant Wong. The defendant Wong's bill of exceptions
brings up for review the action of the court in refusing to grant
his motion for a directed verdict and the giving of plaintiff's
instructions Nos. 3, 4 and 6, the refusal to give the defendant's
requested instructions Nos. 1, 11 and 12, and the giving of No.
12 as modified or amended by the court.
  Had the writing contained all of the terms of the agreement
between the defendant Wong and the driver Gomez for the use of
the automobile involved in the accident and it being free from
ambiguity, we would ascertain from it alone the relationship
which existed between the defendant Wong and the driver Gomez.
Since said writing apparently did not contain all of the
agreement between Wong and Gomez on the subject we must take into
consideration the oral as well as the written evidence of that
relationship. We believe that neither the additional terms nor
the slight variation of the terms of the agreement shown by
defendant's testimony indicates a relation different from that
shown by the written agreement. It is then as though there was no
conflict in the evidence.
  What then was the relationship between Wong and Gomez as shown
by the evidence? We believe the record shows conclusively that
Gomez was employed to operate one of Mr. Wong's taxicabs on
commission and that the court might very properly have told the
jury so, leaving for the jury the remaining elements of
liability. There was therefore no variance between the
allegations and the proof.
  Having found that the court would have been justified in
instructing the jury that the uncontroverted evidence showed that
Gomez was an employee of the defendant

Wong and therefore liable for his negligence, we fail to see how
leaving to the jury the question of whether or not they bore to
each other a different relationship could be prejudicial to the
defendant. It is elementary that there will be no reversal of a
proper judgment for error not prejudicial to the appellant.
  For the reasons stated we are of the opinion that the
exceptions should be overruled and it is so ordered.