Haser v. Pape
| Decision Date | 31 October 1949 |
| Docket Number | 7155. |
| Citation | 39 N.W.2d 578,77 N.D. 36 |
| Parties | HASER v. PAPE et al. |
| Court | North Dakota Supreme Court |
Rehearing Denied Nov. 23, 1949.
Syllabus by the Court
1. The same rule and measure of responsibility attach to the owner and operator of a public taxicab for the acts of agents and servants as apply to other common carriers.
2. When a public taxicab is being operated by an agent of the owner and operator, within the area covered by its certificate of authority, then, in the absence of notice or knowledge to the contrary, the public may assume that such cab driver has authority to invite passengers to ride in such taxicab.
3. It is the duty of the driver of a public taxicab to treat passengers respectfully, and the owner of a taxicab and the employer of its driver must respond in damages to a passenger for an unwarranted assault by the driver, committed in the course of the transportation.
4. The liability of a taxicab carrier for an unprovoked intentional tort on a passenger by an agent is based upon its broad duty as a common carrier to protect its passengers.
5. The basis of the taxicab carrier's liability for the tort inflicted upon a passenger, by a fellow passenger, or other third person, is not such tort itself, but rather the negligent omission of the carrier, through its cab driver, to prevent such tort.
6. In a jury trial, it is error for the trial judge to direct a verdict over the objection of the adverse party. The error consists of the violation of 1947 Suppl. 28-1509, being Laws 1945, chap. 220, a mandatory statutory provision against the direction of a verdict over the objection of the adverse party. Prejudice will be presumed from such error, but such presumption is rebuttable. However, such error is not reversible error if it appears from the whole record that it was not prejudicial error. Held, from an examination of the whole record, that such error is prejudicial and entitles plaintiff to a new trial.
Sinness & Duffy, Devils Lake, and Chase & Dames, Jamestown for plaintiff and appellant.
Rittgers & Hjellum, Jamestown, and Herman Weiss, Jamestown, for defendant and respondent, Yellow Cab Co.
This is an action in tort wherein the plaintiff, a girl of fourteen while riding in a taxicab, was assaulted and raped, with force and against her will, by the driver and also by another man. The suit was brought against the cab company and the driver for money damages. Trial was by jury. Inasmuch as the cab driver did not answer the complaint and was in default, the jury was directed to return a verdict against him and to assess damages in favor of the plaintiff in accordance with instructions as to the law of damages. The jury assessed damages against the cab driver in the sum of ten thousand dollars.
On the other hand, the judge, upon motion of the cab company, directed a verdict for the cab company over the resistance and objection of the plaintiff. This was error, but unless it was prejudicial error, the judgment must be affirmed and a new trial denied. Romkey v. Barnes, 1942, 72 N.D. 127, 133, 5 N.W.2d 79. The error consists of the violation of a mandatory statutory provision forbidding the direction of a verdict over the objection of the adverse party. 1947 Suppl. 28-1509, being Laws 1945, chap. 220. In construing a prototype of such statute, this court has held that prejudice will be presumed from such error and that the party against whom the error is committed need not show that she was, in fact, injured by such error. Ellsworth v. Martindale-Hubbell Law Directory, 1939, 69 N.D. 610, at page 618, 289 N.W. 101, 103, wherein the opinion continues:
A motion for a directed verdict is like a demurrer to the evidence. Bailey v. Davis, 1923, 49 N.D. 838, 845, 193 N.W. 658. Such motion entitles the party against whom it is made to the most favorable views of her case that the evidence warrants as well as to every reasonable inference therefrom. State ex rel. Brazerol v. Yellow Cab Company, 1932, 62 N.D. 733, 736, 245 N.W. 382, La Bree v. Dakota Tractor & Equipment Co., 1939, 69 N.D. 561, 563, 288 N.W. 476; Armstrong v. McDonald, 1942, 72 N.D. 28, 4 N.W.2d 191.
If the verdict had not been directed, the jury could have rightly found the following essential facts:
One Floyd Powell had worked for a short time on the farm of plaintiff's father. He left this employment and went to nearby Jamestown. The plaintiff, Ardene Haser, age fourteen, was living with friends at Woodworth, attending high school. Woodworth is a small town near her father's farm and may be considered a part of the community surrounding the city of Jamestown, a community metropolis. Woodworth is situated about forty-two miles northwest of Jamestown.
Defendant, Elmer Pape, was employed as a cab-driver by the defendant, Yellow Cab Company, a corporation. The cab company operated in the city of Jamestown and also inter-city in an area which included Woodworth.
Powell employed Pape to drive him to Woodworth. Arrangements were made with the clerk in charge of the cab office of hire the cab for three hours at $2.50 per hour. Powell paid $7.50 in advance for the three hours.
On the way to Woodworth, Powell explained to Pape that he wanted to get Ardene Haser into the cab and told Pape a story to repeat which would induce her to come along. The Hasers had a younger daughter who was afflicted with a chronic heart condition and the story Powell concocted and which Pape repeated to Ardene was that her little sister had suffered a severe heart attack and that her parents had hired the taxi sent to Woodworth to bring her to the farm home.
Both Ardene and the lady with whom she stayed at Woodworth believed this false story. Ardene entered the cab and sat in the front seat. After they had started out of town, Powell, who had been hiding in the back seat, made himself known. For four hours Pape and Powell drove Ardene about the countryside against her will. Both of them raped her. Powell threatened to kill her if she told others. Finally she escaped and walked and ran to her rooming place at Woodworth. Pape and Powell then drove to Jamestown and Powell paid the cab company for the additional time he had the use of the cab. The next day the crime was reported and both men were arrested. They pleaded guilty to rape and were sentenced to the penitentiary.
The trial court directed the verdict of dismissal on the theory that but one conclusion could be reached from the evidence, namely, that the cab driver was not acting in the scope of his employment when he invited the plaintiff to become a passenger, and accordingly he was without authority to create the contractual relation of carrier and passenger, so that, as a matter of law, the plaintiff was not a passenger and therefore the cab company was not under any duty to her; also that even though plaintiff were a passenger, the cab driver was not acting within the scope of his employment in committing the assault.
However, if we applied the rule that the principal need merely respond in damages for injuries inflicted by his agent while acting within the course and scope of the agent's employment, we would ignore the distinct doctrine applicable to carriers of passengers. Co-op Cab Co., Inc., v. Singleton, 1942, 66 Ga.App. 874, 19 S.E.2d 541; Korner v. Cosgrove, 1923, 108 Ohio St. 484, 141 N.E. 267, 31 A.L.R. 1193.
In the case at bar, defendant, Yellow Cab Company, a corporation, is a common carrier of passengers, being a carrier of passengers for hire and for all persons indifferently. The same rule and measure of responsibility attach to taxicab carriers for the acts of their employees as apply to other common carriers. Accordingly, the principles of law involved in this case are well established. Finlayson v. Bryan, 1928, 56 N.D. 407, 217 N.W. 662; Durick v. Winters, 1941, 70 N.D. 592, 596, 296 N.W. 744.
The liability of common carriers to their passengers is not to be determined solely by the principles which control in defining their liability to third persons who are not passengers, because the carrier owes to the passenger an additional duty of carrying her safely to the point of her destination.
'Many cases recognize a distinct doctrine as applicable to carriers of passengers, holding or recognizing that carriers are liable for the wrongful acts of their agents or servants which result in injuries to passengers, whether or not willful and malicious or willful and wanton, and whether or not done in the line of their employment or service, or within the scope of their employment or authority, if done during the course of the discharge of the duty which their employers owe to passengers, or in the course of carrying out the contract of carriage, * * *.' 13 C.J.S., Carriers, § 689, page 1275; 10 C.J. 888.
...
To continue reading
Request your trial