Blue Bar Taxicab & Transfer Co. v. Hudspeth

• Citation: 25 Ariz. 287,216 P. 246
• Decision Date: 26 June 1923
• Docket Number: Civil 2062
• Parties: BLUE BAR TAXICAB & TRANSFER COMPANY, a Corporation, Appellant, v. ALICE E. HUDSPETH, as Guardian of the Person and Estate of WILLIAM C. HUDSPETH, an Incompetent Person, Appellee
• Court: Supreme Court of Arizona

216 P. 246

25 Ariz. 287

BLUE BAR TAXICAB & TRANSFER COMPANY, a Corporation, Appellant, v. ALICE E. HUDSPETH, as Guardian of the Person and Estate of WILLIAM C. HUDSPETH, an Incompetent Person, Appellee

Civil No. 2062

Supreme Court of Arizona

June 26, 1923

APPEAL from a judgment of the Superior Court of the County of Pima. Samuel L. Pattee, Judge. Judgment reversed and cause remanded.

Mr Richard E. Sloan, Mr. C. R. Holton, Mr. Greig Scott, and Messrs. Kingan, Campbell & Conner, for Appellant.

Messrs Richey & Richey and Messrs. Moore & Frawley, for Appellee.

OPINION

LYMAN, J.

One Hudspeth, an incompetent, by his guardian sues Blue Bar Taxicab & Transfer Company on account of injuries said to have been negligently inflicted upon Hudspeth while he was a passenger in a taxicab owned by the defendant, and driven by one of its employees. Hudspeth, at the time this action was begun, and for a year or more next preceding including the time when the accident occurred, was a deputy sheriff of Pima county. The defendant directed its driver, named Butler, to take one of its cabs, and go to a designated place in the city of Tucson, that it was an unsafe vehicle for driving upon country roads. Butler picked up Hudspeth and one Colvin and carried them in his cab to a point near the city limits of Tucson, where they alighted, and after a time returned and directed Butler to drive them out into the country beyond the city limits. Butler told Hudspeth and Colvin that he was not permitted to take the cab outside of the city; that it was contrary to the instructions he had received from his employer; but that he would return to headquarters and get a touring car. This offer was declined. Hudspeth and Colvin then entered the cab and directed the driver to proceed out into the country along a road designated by them. Following the directions of the officers, and because of their supposed authority, Butler drove to a railway station sixteen miles, or thereabouts, outside the city of Tucson, where Colvin was left, and where Butler received further instructions from Colvin and Hudspeth to drive back as rapidly as possible to Tucson with Hudspeth. On the way back another car was met, which crowded Butler off the road, and in attempting to recover the highway the car skidded in the sand, struck a small embankment, and overturned, injuring Hudspeth.

At the time of the accident and prior thereto the defendant furnished conveyances to the sheriff of Pima county under a continuing agreement that taxicabs of the sort used at the time of the accident should not be taken into the country, or outside the city of Tucson. The terms of this agreement were communicated by the sheriff to all his deputies, with the instruction that it was not safe to take taxicabs of this type upon the country roads. With a few well-defined exceptions affecting places near Tucson, defendant never permitted its drivers to take cabs of this sort beyond the city limits, because, among other things, of their light and top-heavy construction, and liability to overturn. Instructions to that effect were given to all their drivers, including Butler.

Verdict and judgment were against defendant.

The complaint asserts that, as deputy sheriff, Hudspeth was a passenger in this car under a contract by which the car was furnished for the sheriff's official use. The sheriff's agreement with the defendant for the use of cars provided that no taxicab such as was used in this instance should be sent by the defendant, or taken by the sheriff, or his deputies, outside the city of Tucson. Whether the relative rights of the parties to this action be determined by the general agreement between the sheriff and the defendant, or solely by the circumstances surrounding the ordering and using of the car on this particular occasion, the results would probably be the same. No point is made in the argument as to any distinction between the two.

This agreement resulted in a contract of bailment for hire, by the terms of which the particular subject of the bailment involved in this action was to be used in a certain definite way, and within certain specific limitations. The sheriff had the right to use the taxicab within the city of Tucson. He had no right to use it beyond that limit, and if he did use it beyond that limit it was in violation of his contract. Hudspeth by pleading and proof is identified with the sheriff both as to rights and liability. His claim is based upon the contract of hire made with the sheriff his rights are measured by the terms of that agreement.

The bailee for hire is not permitted to use the subject of bailment for any other purpose than the purpose named in the contract, or for such purpose as may be implied from the contract. Any use different from the use prescribed by the contract would be a misuse of the subject of bailment, and the bailee would thereby become guilty of conversion.

The driver of the taxicab, during the period of its perversion from its use as provided by the agreement, was not using it at the direction of the owner, but was using it under the direction of Hudspeth; and the negligence of the driver under such conditions cannot be imputed to the owner. By such perversion of use there was involved a hazard not contemplated nor agreed upon by the contract of hiring. Defendant could not be held liable for the negligence of the driver, because the hazard was one it had not agreed to assume. Hudspeth could not claim such liability, because it arose in the course of his own wrongdoing in violating the contract of hire. The driver was not serving the defendant in violating its express order, and in following the direction of plaintiff in violation of the contract of hiring. Stone v. Hills, 45 Conn. 44, 29 Am. Rep. 635.

In the case of Fritz v. Hockspeier, 287 Ill. 574, 123 N.E. 51, a car with driver was hired to take passengers to the Forest Home Cemetery, but was used instead to drive to Montrose Cemetery, in a different direction. In the course of the drive, an accident occurred, said to have been due to the negligence of the driver, and one of the occupants of the car injured. The court decided that the negligence of the driver could not be imputed to the owner of the car, because it occurred while the car was being used in a manner not contemplated by the contract of bailment.

The appellant complains because the trial court in its charge to the jury said, among other things:

"Presumptively an employee engaged to drive an omnibus or a truck or a taxicab, or anything of that kind, who is actually driving the taxicab at a given time and place, is acting within the scope of his employment."

That the car was being used in violation of the express agreement between the owner of the car and the sheriff, and that the driver of the car had definitely explained to Hudspeth on this trip that he had no authority, but on the contrary was expressly forbidden by the owner, to take this car outside the city limits, and that the driver did go outside the city limits, because, as he said, he believed the officers had a right to compel him to do so, and did do so under their express orders, was all uncontradicted, and therefore must be assumed true. The learned judge, having in mind no doubt the case of Baker v. Maseeh, 20 Ariz. 201, 179 P. 53, seemed to regard the presumption arising from ownership of the car and general employment of the driver as so weighty that the question of liability must be submitted to the determination of the jury. That, however is not the law. This jurisdiction, as well as some others, has adopted, for...