Gilmore v. Huntington Cab Co.
| Decision Date | 09 June 1942 |
| Docket Number | 9308. |
| Citation | 21 S.E.2d 137,124 W.Va. 469 |
| Parties | GILMORE v. HUNTINGTON CAB CO. |
| Court | West Virginia Supreme Court |
Rehearing Denied Aug. 1, 1942.
Syllabus by the Court.
Wilbert H. Norton and John E. Jenkins, both of Huntington, for plaintiff in error.
J J. N. Quinlan and E. H. Greene, both of Huntington, for defendant in error.
In this action of trespass on the case, Winifred Gilmore obtained a judgment in the Circuit Court of Cabell County of $9,000 against Huntington Cab Company, doing business as Checker Cab Company, for injuries received by her when a taxicab owned by defendant and driven by Howard Himes, its employee overturned. Defendant prosecutes this writ of error to that judgment.
Winifred Gilmore, a seamstress, thirty-six years of age, on October 8 1940, went to the home of Sadie Clark on Fifth Street in Huntington, West Virginia, to alter a garment. Lafe Clark Sadie's brother, accompanied her, and the brother and sister having decided to "go somewhere" invited plaintiff to go with them. In response to a call for a taxi, defendant sent its cab, driven by Howard Himes, to the Clark residence, where Lafe and Sadie Clark and plaintiff entered the taxi and occupied the rear seat thereof. It was about 8:45 o'clock in the evening. Clark directed the driver to stop at a liquor store, where he purchased a pint of apricot brandy; and then having made inquiry of the driver of the fare to "Tanner's hamberger stand", located three or four miles from the liquor store, a place where "they serve sandwiches and beer and coca cola" and where "they have a place to dance", Himes proceeded to Tanner's with his passengers. En route there, each of the passengers "took a little drink of brandy", and, according to the testimony of Sadie Clark and plaintiff, Himes stopped the cab and requested a drink of the brandy, to which request Clark acquiesced.
There is a conflict in the testimony offered by plaintiff as to what occurred when they reached Tanner's. Plaintiff and Sadie Clark testified that Lafe Clark paid Himes the fare and, advising him that "we wouldn't be out there but a little bit", asked Himes for his name and number, that Himes then "got in the cab", that the others went into Tanner's, occupied a booth, and plaintiff and Sadie each ordered a Coca-Cola and Lafe Clark a beer, and "about the time they brought our order", Himes came in and asked if he might sit with his passengers, and the response being favorable, he joined them. Himes stated, however, that the women preceded Clark into Tanner's and while paying the fare, Clark asked him if he wanted another drink and Himes having answered in the negative, Clark invited him to drink a Coca-Cola. Himes ordered beer. According to him he consumed three or four bottles, while plaintiff and Sadie Clark are positive in their testimony that he drank only one and one-half bottles. The remainder of the brandy was poured into an empty Coca-Cola bottle and consumed by the four. While at Tanner's, according to plaintiff, Lafe Clark asked Himes "how much it would be from there on to go on out to Poe's Raven (a distance of approximately 12 miles) to get a chicken dinner", and Himes advised that he would have to charge a dollar and a half an hour for the cab and "him as the driver". Himes denies that anything was said by either of the women or by Clark about paying for the trip from Tanner's to Poe's Raven, although there appears in the record the following question and answer:
Himes also testified that he considered that he was on duty.
Between nine and nine-thirty o'clock the three passengers and Himes proceeded to Poe's Raven, located in Wayne County, twelve or fourteen miles from Tanner's. Himes invited Sadie Clark to ride in the front seat with him, while Lafe Clark and plaintiff occupied the rear seat. Plaintiff testified that Himes She estimated Himes' driving at sixty or seventy miles an hour. There was a protest from each of the passengers and a request that Himes drive "a little slower". Having complied with the request, Himes then announced that he was "not going to drive like this", began to speed, and in going around a curve, the car upset. Plaintiff was injured and Lafe Clark killed. According to a member of the Department of Public Safety, the accident occurred at 9:45 p. m., and at a point approximately three and one-half to four miles from Tanner's.
At the conclusion of all evidence, defendant requested a directed verdict, which was denied. The jury returned a verdict of $9,000, on which judgment was entered. Defendant asserts two grounds as basis for reversal: (1) That Himes was not acting within the scope of his employment at the time of the accident, and (2) plaintiff is chargeable, as a matter of law, with contributory negligence.
The guides for determining the first assignment of error are clear. In this jurisdiction, proof that defendant was the owner of the motor vehicle which caused an injury, resulting from the negligence of the driver thereof, creates a presumption that the driver when the collision occurred was in the service of the owner and operating it on his account. Ercole v. Daniel, 105 W.Va. 118, 141 S.E. 631. The presumption is, however, rebuttable and "if creditable evidence to the contrary is offered, the presumption loses its legal force and only the facts which gave rise to it remain to be considered by the jury, along with the other evidence." Jenkins v. Spitler, 120 W.Va. 514, 199 S.E. 368, 369. Does the record contain such evidence that warrants this court to say that the legal force of the presumption is destroyed or that, as a matter of law, the driver of the cab was acting outside the scope of his authority? In the instant case, it is an irrefragable conclusion that Himes was acting within the scope of his authority at the time he discharged his passengers at Tanner's; and it is likewise evident that those same passengers contemplated his further services as driver later that evening. We have detailed the seeming conflict between the testimony of Winifred Gilmore and Himes relative to the fare to Poe's Raven, and while it is true Himes denies that either plaintiff or the Clarks said anything about paying the fare, the record is silent of any contradiction of plaintiff's testimony that he (Himes) was asked the fare to Poe's Raven, or that Himes would have to charge $1.50 an hour; but though Himes' testimony may be considered a positive contradiction of plaintiff's version, we may not accept it as true in the light of the plaintiff's testimony. The testimony of Sadie Clark, corroborated by plaintiff and not denied by Himes, that she started to get into the rear of the cab and, only upon invitation of Himes, entered the front has evidential significance that she was entering the cab as a paying passenger rather than as a partner of Himes in a frolic. Upon such contrariety of evidence, we can not say that the trial court erred in submitting the issue to the jury for determination, nor can we say that its conclusion thereon is erroneous. We do not attribute pertinency to the contention of defendant that Himes failed to report that he was going to Poe's Raven. Such a violation of duty by the agent does not relieve the principal from liability. Brightwell v. Simpson, 106 W.Va. 471, 146 S.E. 383; Yellow Cab Corp. v. Halford, Tex.Civ.App., 91 S.W.2d 801.
The standard of care prescribed by this court for the operation of a taxicab is utmost care compatible with the driving thereof. Venable v. Gulf Taxi Line, 105 W.Va. 156 141 S.E. 622. Defendant admits that Himes was intoxicated at the time of the accident. Since we have stamped as untenable the position of defendant that Himes was not acting within the scope of his authority when he wrecked the cab and caused plaintiff's injuries, it necessarily follows that Himes' primary negligence, in legal effect, must be held to be that of his principal. To free itself of liability therefor, defendant urges plaintiff's conduct, under the...
To continue reading
Request your trial