Lewis v. South San Francisco Yellow Cab Co., 14107

CourtCalifornia Court of Appeals
Writing for the CourtBRAY; PETERS, P. J., and WARD
Citation93 Cal.App.2d 849,210 P.2d 62
Docket NumberNo. 14107,14107
Decision Date04 October 1949

Page 62

210 P.2d 62
93 Cal.App.2d 849

No. 14107.
District Court of Appeal, First District, Division 1, California.
Oct. 4, 1949.
Hearing Denied Nov. 28, 1949.

E. C. Mahoney, Burlingame, for appellant.

Hoge, Pelton & Gunther, San Francisco, Harry N. Grover, San Francisco, Leo V. Killion, Reginald M. Watt, San Francisco, for respondents.

BRAY, Justice.

From a judgment entered after order granting defendants' motion for a nonsuit, plaintiff appeals.

The sole question presented is whether there was any evidence to support the allegations of plaintiff's complaint.


While the defendants set forth in the complaint were the South San Francisco Yellow Cab Company, a partnership, Walter Ryan and three Does, answers were filed by Walter [93 Cal.App.2d 850] Ryan, doing business as South San Francisco Transit Company, and Hughlan T. Phillips, 'sued as 1st Doe' (actually he was sued as 3rd Doe). No point is made of these discrepancies and hereafter they will be disregarded.

The complaint, after alleging operation by defendants of a line of cabs for transportation of passengers for hire, states that at a certain time plaintiff entered one of defendants' cabs 'and was received by

Page 63

defendants as a passenger of said cab for the journey she intended to make. That instead of following her instructions, and disregarding her protests, defendant, Third Doe, drove the cab to a secluded spot west of El Camino Real, in San Bruno, and made improper suggestions and advances to plaintiff. That plaintiff then and there became alarmed at this wrongful conduct of said defendant and believed that she was in danger of being attacked and assaulted by said defendant. That she then and there prevailed upon said defendant to stop the cab, which he did, and she immediately alighted therefrom and started across a field to get away from defendant's threatened assault and search for help. That it was a very dark night and a short distance from said cab plaintiff stepped into a depression and fell to the ground and as a result thereof plaintiff broke most of the bones in her left foot.' She then alleges that 'plaintiff's injury was the proximate result of said defendant's wrongful conduct' and sets forth the extent of the injury, together with allegations of damage resulting therefrom.

A reading of the complaint shows that its gravamen is that the wrongful conduct of the cab driver caused plaintiff to fear that she was in danger of being attacked by him, causing her to flee from his threatened assault, as a result of which she was injured. Now, let us see if there are any facts to support this issue.


Plaintiff was the only witness on the question of liability. She testified that she was a waitress employed in San Francisco. On a day early in September, 1946, after attending an evening picture show, she found, on arriving at the Greyhound Bus Depot, that she had just missed the bus to San Bruno, where she resided. She then decided to take a bus to South San Francisco and a taxicab from there to her home. She arrived at the bus station in South San Francisco about 12:00 midnight. She then went to the defendants' cab stand and stated to defendant Phillips, hereafter referred to as the [93 Cal.App.2d 851] driver, whom she knew, that she wanted a cab to take her to her home in San Bruno. He said he would be right back and she waited for him. In a few minutes he returned having with him a sailor, whom she had seen a lot of at one time...

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7 cases
  • Pierce v. Pacific Gas & Electric Co.
    • United States
    • California Court of Appeals
    • March 26, 1985
    ...a "product" was tendered to opposing counsel and the trial court itself. PG & E relies upon Lewis v. South S.F. Yellow Cab Co. (1949) 93 Cal.App.2d 849, 210 P.2d 62 for the proposition the trial court properly granted the nonsuit because plaintiffs failed to obtain leave to amend their comp......
  • R. E. Tharp, Inc. v. Miller Hay Co.
    • United States
    • California Court of Appeals
    • April 12, 1968
    ...not upon some other which may appear from the proofs (Bailey v. Brown, 4 Cal.App. 515, 88 P. 518; Lewis v. South S.F. Yellow Cab Co., 93 Cal.App.2d 849, 210 P.2d Thus, the crucial question is whether the trial judge should have ordered an appropriate amendment to plaintiff's pleadings even ......
  • Wood v. DeLuca
    • United States
    • California Court of Appeals
    • January 2, 1963
    ...292 P.2d 595, involved a chanege from the tort of malicious prosecution to breach of contract; Lewis v. South S. F. Yellow Cab Co., 93 Cal.App.2d 849, 210 P.2d 62, a variation in proof from a charge of molestation by the cab driver to evidence of failure to portect from a fellow passenger w......
  • Sarsenstone Corp. v. Griffith, G055106
    • United States
    • California Court of Appeals
    • June 24, 2019
    ...as to conform to the proofs, the defendant may have his nonsuit . . . ."]; accord, Lewis v. South San Francisco Yellow Cab Co. (1949) 93 Cal.App.2d 849, 853.) Even had Sarsenstone not forfeited its promoter-based claim, the doctrine of promoter liability applies only to promoters of a corpo......
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