English v. Yellow Cab Co.

• Decision Date: 25 April 1969
• Docket Number: 2,No. 44310,Nos. 1,3,44310,s. 1
• Parties: Peggy ENGLISH v. YELLOW CAB COMPANY
• Court: Georgia Court of Appeals

Page 920

168 S.E.2d 920

119 Ga.App. 828

Peggy ENGLISH v. YELLOW CAB COMPANY.

No. 44310.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 25, 1969.

Rehearing Denied June 19, 1969.

Syllabus by the Court

The evidence of the plaintiff was sufficient to authorize the submission of her case to the jury and the trial court erred in directing a verdict for the defendant at the close of the plaintiff's evidence.

Joe R. Edwards, J. Richmond Garland, M. T. Hartman, III, Atlanta, for appellant.

Hansell, Post, Brandon & Dorsey, Jule W. Felton, Jr., Atlanta, for appellee.

PANNELL, Judge.

Peggy English brought a complaint against the Yellow Cab Company of Atlanta, a corporation, with its principal office and place of business in the City of Atlanta, Fulton County, Georgia, claiming damages for injuries sustained when she was attempting to alight from one of the defendant's taxicabs. The material allegations of the complaint were denied, raising an issue as to whether the taxicab involved was owned by the defendant company and whether the driver thereof was an agent or servant of the defendant company acting within the scope of his employment. Upon the trial of the case (by stipulation of the parties as to what he would testify) it appeared that the plaintiff's employer called the Yellow Cab Company for a cab to come to the place of plaintiff's employment which the evidence shows was at 5 Pine Street or the corner of West Peachtree Street and Pine Street for the plaintiff and a friend. Within five or ten minutes the taxicab in question, painted yellow, with a sign in black painted on the sides 'Yellow Cab' appeared, and plaintiff and her co-employee entered. When the cab arrived at the plaintiff's home at 120 Main Street, N.W., she received injuries while alighting therefrom, due to the unexpected movement of the cab, and failed to get the name of the driver or the number of the cab, but did pay her fare. On direct examination, while being questioned about the occasion at issue, the following question was asked and answer given by the complainant: 'Question: In whose taxicab did you ride? Answer: It was the Yellow Cab Company.' This evidence, unobjected to, was sufficient to authorize a finding by the jury that the cab belonged to the defendant. The fact that the full name, Yellow Cab Company of Atlanta, was not given would not preclude such authorized finding, particularly when coupled with the fact that a cab with the name 'Yellow Cab' thereon appeared at a location, designated in a telephone request by the plaintiff's employer to the Yellow Cab Company for a cab (see in this connection Barnum & Bailey Shows, Inc. v. Himmelweit, 17 Ga.App. 85, 86 S.E. 96, where the testimony referred to a wagon belonging to 'Barnum & Bailey'), and this evidence is sufficient to authorize a jury to find that the driver was an agent or servant of the defendant, designated by it to perform the transportation service requested by telephone. Evidence is prima facie sufficient which shows the probability of the fact necessary to be proved. To be sufficient, it must be such that a reasonable man could infer from it the particular fact to be proved. Hortman v. Vissage, 193 Ga. 596(2, 6), 19 S.E.2d 523; Morgan's, Inc. v. Mons, 79 Ga.App. 525, 54 S.E.2d 498; Smith v. Patterson, 82 Ga.App. 595, 61 S.E.2d 679. In our opinion, the evidence was sufficient to make a prima facie showing that the taxicab belonged to the defendant and was driven and operated on the occasion in question by its servant and agent acting within the scope of his authority. There is nothing herein ruled in conflict with what was ruled in Southern Railway Co. v. Hullender, 62 Ga.App. 274, 8 S.E.2d 674 and Clark v. Atlanta Veterans Transportation, Inc., 113 Ga.App. 531, 148 S.E.2d 921. In the Southern Railway Company case, the holding was that '(p)roof of the fact that a locomotive engine had written on it the words 'Southern Railway Company,' unsupported by any other fact, was insufficient to authorize the inference that it was owned by the ...