Chaput v. Lussier

• Decision Date: 01 April 1933
• Parties: CHAPUT v. LUSSIER (four cases).
• Court: Maine Supreme Court

165 A. 573

CHAPUT

v. LUSSIER (four cases).

Supreme Judicial Court of Maine.

April 1, 1933.

Exceptions from Superior Court, Androscoggin County.

Separate actions by Anna Chaput and Marie Chaput, and two actions by Joseph Chaput, against Adelard J. Lussier. Judgment for plaintiffs, and defendant brings exceptions.

Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Clifford & Clifford and Frank T. Powers, all of Lewiston, and John Marshall, of Auburn, for plaintiffs.

Herman & Berman, of Lewiston, for defendant.

DUNN, Justice.

These four actions by three different plaintiffs against one defendant are in this court on defendant's exceptions to the acceptance of referees' reports, adverse to him. Two of the cases, those by Anna Chaput and Marie Chaput, were once before presented on their exceptions. An issue in the references, concerning which evidence had been introduced, having been left undecided, the exceptions were sustained. Chaput v. Lussier, 131 Me. 145, 159 A. 851. This opened the questions in each case anew. The lower court recommitted the cases to the same referees. This time the referees heard and considered not only these, but two other actions against the same defendant. These are by Joseph Chaput, the husband of Anna Chaput, and the father of Marie Chaput, a minor. Findings were favor able to the several plaintiffs. No award of damages is the subject of attack, except as a whole; the contention of the defendant is the want of legal basis for any award.

The women plaintiffs, while being carried in a taxicab of the defendant, suffered personal injuries. They sue for damages; the younger woman, whose age when injured was nineteen years, prosecutes by her father as next friend. The suits by him individually, for compensation for loss of services, society and companionship, and for expenses, involve the same underlying issues as do the cases by the women.

There was evidence from which the referees could find that the defendant held himself as a common carrier of passengers, by taxicab service, for hire or reward. He owned taxicabs, which he was licensed to operate, for the general accommodation of the public, in transporting persons between termini designated by the caller of the taxicab, for fares agreed upon or usually charged. He did business as the American Diamond Taxi Company; he had a stand, and an office with telephone connection, and taxicabs and drivers who responded to calls to take people where they wanted to go. There was ample evidence to warrant the inference that the defendant was a common carrier. This being true, he assumed all the obligations incident to that calling. See Hutchinson on Carriers (3d Ed.) §§ 48, 49.

A common carrier in the modern sense includes a carrier of passengers as well as one of goods. Hutchinson on Carriers, § 890. Carriers of passengers are not held responsible as insurers of the safety of those whom they transport, as common carriers of goods are. They are, however, bound to exercise care and diligence for the comfort and safety of their passengers.

The obligation of a carrier to a passenger for his safe carriage is usually dealt with as an obligation imposed by the law of torts rather than as one assumed by contract. Liability, though it arises out of contract, is for negligence. The obligation is wider than any that could be based on mutual assent. Williston on Contracts, § 1113.

Defendant's taxicab came to plaintiffs' house in answer to a telephone call, late in the afternoon of November 23, 1930, to carry the husband and father to a town some miles distant, and to take the women and one Lucien Lussier (a friend of the girl, and brother to the defendant) there and back. The fare, which was fixed in advance at $6, appears to have been payable upon full performance of the contract of transportation. The referees were justified in believing, from the evidence, that the women entered the taxicab in the character and relation of passengers.

Leo Gagne, an employee of the defendant, was the regular driver of the taxicab. He reported with it. The defendant himself testified that he had given Gagne orders not to allow any one else to drive the cab. That there had been such an order is not shown to have been known to the plaintiffs. However, instructions of the master to his servant do not govern the situation.

On learning where the vehicle was to be driven, Gagne asked Lucien Lussier if he had been over the route. Lucien said that he knew the road well, whereupon Gagne asked him to drive; he took the wheel. He had a chauffeur's license, and was experienced in the driving of automobiles. Gagne and Miss Chaput sat on the seat with Lucien on the outward journey, Mr. and Mrs. Chaput occupying the back seat. After leaving Mr. Chaput at his destination, Leo took his place in the rear seat, Miss Chaput remaining in front. On the return trip, with Lucien still operating the cab, the accident occurred.

The respective declarations allege negligence in the operation of the taxicab, by Lucien, in the middle of the road, at an excessive rate of speed, in a careless and reckless manner, and swerving it to the right, suddenly and without warning, so that it skidded and crashed into an approaching car, and bumped and slid along the highway, with a broken wheel, for a long distance, finally tipping over, with proximate disaster. Operation is alleged to have been by request of, and in the presence of, Gagne, and in consequence of his careless and reckless neglect.

On rounding a curve in the road (the time now. being about 9 o'clock), two or three automobiles were seen approaching. There was evidence of tendency to prove that the lights on these cars were first visible at the estimated distance of about one thousand feet, save for a moment when "they were in a hollow." Or, as another witness puts it, in effect, a dip in the grade the cars were making obscured the view, but only for an instant. The second of these cars was trying to pass the first. It either had accomplished or was about to accomplish this, on the summit of the not steep elevation, when it came into collision with the taxicab; the injuries to Mrs. Chaput and Miss Chaput directly resulting.

A finding was warranted, from conflicting evidence, that the cab was being driven at an unduly high rate of speed, in the center of the road. Miss Chaput testified that her mother (who was so seriously injured as to be unable to attend on the trial) twice spoke to Lucien, shortly before the accident happened, saying that he was going too fast, and asking that he slacken speed. He did slow the cab, but only temporarily. Gagne made no attempt to control the operation of the vehicle; he did nothing; he said nothing.

The doctrine of respondeat superior has no application to the relation existing between a common carrier and passengers. Pittsburgh, etc., Railway Company v. Hinds, 53 Pa. 512, 91 Am. Dec. 224. There was no such privity between the defendant and Lucien Lussier as to...