Carlton v. Boudar

• Decision Date: 16 March 1916
• Citation: 88 S.E. 174
• Parties: CARLTON et al. v. BOUDAR.
• Court: Virginia Supreme Court

88 S.E. 174

CARLTON et al.

v.BOUDAR.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Error to Law and Equity Court of City of Richmond.

Action by Thomas Boudar against the Richmond Transfer Company and E. S. Carlton. There was a judgment for plaintiff, and defendants bring error. Affirmed.

R. H. Talley and S. S. P. Patteson, both of Richmond, for plaintiffs in error.

Smith & Gordon, of Richmond, for defendant in error.

KEITH, P. This action was instituted in the law and equity court of the city of Richmond by Thomas Boudar against the Richmond Transfer Company and E. S. Carlton to recover damages for an injury sustained by him on the 13th of November, 1914.

The record discloses the following facts On the night of the 31st of October, 1914, shortly after 8 o'clock, Boudar was traveling as a passenger in a taxicab of the Richmond Transfer Company, from Byrd street station, in the city of Richmond, to his home on Grove avenue. About the time indicated, the taxicab, operated by a chauffeur of the Richmond Transfer Company, came to the intersection of Grove avenue and Lombardy street, going in a westwardly direction. At the same time an automobile owned by the defendant E. S. Carlton and operated by a chauffeur employed by him, was going in an eastwardly direction, until it reached the intersection of those streets, when it turned north into Lombardy street. The chauffeur of the taxicab claimed that he had the right of way and that the collision which ensued was caused by the chauffeur of Carlton's automobile making a short instead of a long turn at the intersection of the streets and thus placing Carlton's machine in such a position that a collision was inevitable. Carlton's chauffeur claimed, on the other hand, that his machine had the right of way, having made the long turn at the intersection of the streets and started north before the taxi-cab reached Lombardy street. He also claimed that the taxicab was running at an excessive rate of speed and, although carrying the lights required by the city ordinance, did not carry the headlight prescribed by state statute. As a result of the collision, Boudar's head came in contact with the top of the taxi-cab, inflicting severe injuries upon him for which the jury gave him a verdict for $3,000 against both defendants, upon which the court entered judgment, and both defendants applied for and obtained a writ of error.

The first error assigned is that the court erred in overruling the demurrer to the declaration. The grounds of demurrer are as follows: That the Richmond Transfer Company is charged in the declaration with being a common carrier of passengers, while the defendant E. S. Carlton is not so charged; that if a common carrier, then the Richmond Transfer Company owed to the plaintiff the highest degree of care to avoid injuring him, and is liable for the slightest negligence; but that the defendant Carlton owed to the plaintiff only ordinary care to prevent injury to him, and is liable only for a breach of that duty; that different degrees of care being required of the defendants, they cannot be joined in one action. Secondly, that the declaration does not set forth a joint liability, and either defendant can be sued separately, but not jointly. Third, that there can be no contribution among wrongdoers, and they should not, therefore, be joined; that this action is a misjoinder not only of the parties but of actions, the liability being different as to each defendant.

A misjoinder of parties cannot be taken ad-vantage of by demurrer. The remedy by stat-ute (Acts 1895-96; section 3258a, Pollard's Code) is to move the court to abate the suit or action as to the party improperly joined. Riverside Cotton Mills v. Lanier, 102 Va. 159, 45 S. E. 875; Lee v. Mut. R. P. L. Ass'n, 97 Va. 160, 33 S. E. 556.

The general principle is stated by 1 Shear. & Red. on Neg. § 31, as follows:

"If the injuries caused by the coucurreut acts of two persons are plainly separable, so that the damage caused by each can be distinguished, each would be liable only for the damage which he caused; but if this is not the case, all persons who contribute to the injury by their negligence are liable jointly and severally for the whole damage."

In Riverside Cotton Mills v. Lanier, supra, it is expressly held that tort-feasors may be sued jointly "notwithstanding there may exist a difference in the degree of liability, or the quantum of evidence necessary to establish such liability."

In Staunton Telephone Co. v. Buchanan, 108 Va. 813, 62 S. E. 928, it is said that:

"Cotrespassers are jointly and severally liable, and the party injured may sue all of them jointly, or two or more of them jointly, or one of them severally, as he may see proper."

To the same effect see Graves' Notes on Torts, p. 1.

That contribution between wrongdoers cannot be compelled does not render the declaration against two or more wrongdoers demurrable. The general rule seems to be that contribution between wrongdoers cannot be compelled, but to this rule there are numerous exceptions, with respect to which we give no opinion. The demurrer we think was properly overruled.

The second assignment of error is made on behalf of the Richmond Transfer Company, and is to the effect that it is not a common carrier.

The declaration in each count charges that the Richmond Transfer Company was engaged as a common carrier, and that the plaintiff became and was a passenger for reward. In the charter of the company it is pro.vided that:

"The business of said company shall be the transportation and carriage of passengers and their baggage, and other persons and goods, wares and merchandise to and from the various railroad stations and other points in the city of Richmond, and in the counties of Henrico and Chesterfield."

"The distinction between a public or common carrier of persons and a private or special carrier of the same is that it is the duty of the former to receive all persons who apply for a passage." Angell on Carriers, § 524.

The proof is that the vehicles of this company attended upon the depots of the various railroad companies, and held themselves out as ready to receive and transport all who applied for passage and were ready to pay compensation for the service.

"To constitute one a common carrier it is necessary that he should hold himself out to the community as such. This may be done not only by advertising, etc., but by actually engaging in the business and pursuing the occupation as an employment." Nashville R. R. v. Messino, 1 Sneed (Tenu.) 225.

In Babbitt on Motor Vehicles, § 620, it is said:

"A 'taxicab' is to be classed with the public horse-drawn hack, or, to use the English name, a 'hackney carriage.' Such vehicles are usually operated for public purposes by individuals or corporations, as were the older style omnibuses and hack lines. They may be presumed in most cases to fall within the classification of carriers of passengers as described in the preceding sections."

To fasten upon the proprietors the character of carriers of passengers, it is immaterial whether or not they ply their vocation within the limits of a town or from one town to another. Thompson on Carriers of Passengers, p. 26, note 1.

In Huddy on Automobiles, at page 38, it is said:

"An automobile may be used as a common carrier, a private carrier, or a personal private conveyance. Public motor vehicles, such as sight-seeing cars, taxicabs, and others which are employed in carrying all persons applying for transportation, come within the definition that a common carrier of passengers is one who undertakes for hire to carry all persons who may apply for passage."

"The common carrier of goods, " says Dobie on Bailments and Carriers, p. 300, "is one who holds himself out, in the exercise of a public calling, to carry goods, for hire, for whomsoever may employ him. From this definition it appears that the essential characteristics of the common carrier of goods are: (a) He must carry as a public employment by virtue of his general holding out; (b) he must carry for hire, and not gratuitously."

And at page 518 the author says:

"The same considerations that distinguish the common from the private carrier of goods apply to set apart the common and the private carrier of passengers. * * * The common carrier of passengers holds himself out to carry all proper persons who apply. The private carrier makes no such profession, and engages in the transportation of passengers only by virtue of special contract made in each individual case, into which contract the private passenger carrier can enter or not, as he chooses. He can refuse, either for a bad reason or no reason at all, to transport individuals without incurring any liability for such refusal."

At page 519 Dobie says:

"The most important common carriers of modern times are railway and steamboat companies, street railways (whether surface, elevated, or underground), and the proprietors of omnibuses, hacks, and taxicabs"—citing numerous cases in support of the statement.

In Black's Law Dictionary it is said that a carrier is:

"One who undertakes to...