Blue Bar Taxicab & Transfer Co. v. Hudspeth, Civil 2062

• Court: Supreme Court of Arizona
• Citation: 25 Ariz. 287,216 P. 246
• 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
• Decision Date: 26 June 1923

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

[25 Ariz. 288] LYMAN, J.

One Hudspeth, an incompetent, by his guardian sues Blue Bar Taxicab & Transfer Company on account of injuries [216 P. 247] 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 [25 Ariz. 289] 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.

[25 Ariz. 290] 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, [25 Ariz. 291] 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...