Korner v. Cosgrove
| Decision Date | 23 October 1923 |
| Docket Number | 17810 |
| Citation | 108 Ohio St. 484,141 N.E. 267 |
| Parties | Korner Et Al., D. B. A. C. H. Korner & Son, v. Cosgrove. |
| Court | Ohio Supreme Court |
Master and servant-Acts performed after regular hours of serv-ice-Taxicabs common carriers, when-Liability for acts of agents-Unwarranted assault upon passenger.
l. A Person employed as a driver of a public taxicab, whoa duties under his contract of employment usually ended at 6:30 p.m and who on a single occasion, without being specially requested so to do, drives one of the vehicles of his employer, at about the hour of midnight, in transporting a passenger, the usual and customary fee for such service being collected by the driver, and the same being promptly paid to the employer, is engaged in the service of the master, and the same measure of responsibility attaches to the master for the acts of the servant as though the service was performed during the regular hours of service.
2. Persons owning and operating public taxicabs for the transportation of passengers, holding themselves out as willing to carry persons generally for hire, are "common carriers."
3. The same rule and measure of responsibility attaches to the owner and operator of a public taxicab for the acts of agents and servants as applies to other common carriers.
4. It Is the duty of the driver of a public taxicab to treat passengers respectfully, and the owner of such taxicab and employer of such driver must respond in damages to a passenger for the unwarranted assault of such driver committed in the curse of such transportation.
The facts are stated in the opinion.
Messrs Gallinger & McCarron, for plaintiffs in error. Mr. Chester A Meck and Mr. Benjamin Meck, for defendant in error.
The plaintiff in this action, a passenger in a public taxicab sued to recover damages from Korner & Son, as owners and operators of a line of public taxicabs then being operated for hire in the city of Bucyrus, Ohio. It was alleged in the petition and admitted in the answer that the defendants did at the time complained of own and operate a line of taxicabs for hire. It was claimed that plaintiff, at about the hour of 12 o clock at night, went to the place of business of defendants in Bucyrus, and applied for a taxicab to take her to her home in a remote part of the city, and found Edward Driscoll, an employe of defendants, who started to take her to her home in a taxi, but who instead of going directly to her home, drove the machine into the country, where lie assaulted and ravished her.
At the trial the defendants endeavored to prove that Driscoll was not on duty at the time; that by the terms of his employment his duties ceased at 6:30 in the evening. It was admitted, however, that Driscoll used a machine belonging to the defendants, and on his return to the garage paid into the bands of one of the defendants the usual fee for such taxi service.
The testimony of plaintiff, strongly supported by the testimony of her mother and other attendant circumstances, if believed, made a clear case of rape. Driscoll testified at the trial, and, while admitting having driven the girl into the country before taking her home, and admitting the act of sexual intercourse, denied that it was against her will.
The court clearly instructed the jury that there could be no recovery unless it was found that there was unlawful carnal knowledge by force and against plaintiff's will. The jury were further definitely instructed that, if the act of intercourse was with plaintiff's consent, the verdict should be in favor of the defendants.
In addition to the allegations of the petition that plaintiff was a passenger in a public taxicab driven by an employe of the firm owning and operating the taxicab, the petition contained the further allegation that the driver was a person of low morals, and a depraved character, which fact his employers knew, or, by the exercise of ordinary care, should have known.
Much of the charge of the court is taken up with that feature of the case, which need not receive serious attention at our hands, because the conclusions we have reached in this controversy make it unnec- essary to prove that the Owner and operator of a public taxicab bad notice or Knowledge of the depraved character of the driver. The jury returned a verdict in favor of the plaintiff, and this verdict must have been based upon a finding that rape, as defined by the court, had actually been committed.
While it is not seriously questioned that the defendants were common carriers of passengers, Inasmuch as there has never been an authoritative declaration by this court upon this point, it will be proper to briefly state that all the authorities without exception have declared that public taxicabs, operated for hire, and which are offered promiscuously to the public for the service of transportatiOn of passengers, are common carriers. This is true, without any regard to the limits of the service. Huddy on Automobiles (5th Ed.), p. 45; Berry on Automobiles (3d Ed.), Section 1502,
It was admitted in the answer that they "were the owners and Operators of a certain line of taxicabs for hire in the city of Bucyrus, Ohio," and in their testimony that they held themselves out as willing to haul people in taxicabs for hire.
The court further instructed the jury that, in order For plaintiff to recover, they must find that Driscoll was at the time in the employ of the defendants and performing his usual duties as a taxicab driver. It was therefore claimed by defendants' counsel that, inasmuch as the driver's duties usually ended at 6:30 in the evening, the act was not committed by him while performing his usual duties as a driver. Inasmuch as Driscoll was a regular employe of the defendants, and this service was rendered by him while using one of the conveyances of the defendant, for which the usual fee was paid directly into the hands of one of the defendants, it would be ridiculously technical to hold that the service was thereby rendered otherwise than in the performance of his usual duties.
Having found that the relation of carrier and...
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