Meridian Taxicab Co., Inc. v. Ward

• Decision Date: 20 February 1939
• Docket Number: 33559
• Citation: 184 Miss. 499,186 So. 636
• Court: Mississippi Supreme Court
• Parties: MERIDIAN TAXICAB Co., INC., v. WARD

186 So. 636

184 Miss. 499

MERIDIAN TAXICAB Co., INC., v. WARD

No. 33559

Supreme Court of Mississippi, Division A

February 20, 1939

APPEAL from the Circuit Court of Lauderdale County HON. A. G. BUSBY Judge.

Action for injuries by Mrs. Nellie Ward against Meridian Taxicab Company, Incorporated, and others. Judgment for plaintiff against the named defendant, and the named defendant appeals. Affirmed.

Affirmed.

Howard Westbrook, of Meridian, for appellant.

From the previous decisions of this court it seems fairly well settled that Ward, on the occasion of the alleged accident was not the servant of this appellant.

N O., B. R., V. & M. R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191.

In the case at bar the appellant did not select Ward; it did not have the right to discharge him, having only the right to refuse to permit him to receive any calls from its station, while on the other hand the owner of the car, Saxon, could have fired Ward at any time that he chose; the appellant did not have the right to control Ward for it had no authority, or any means of enforcing any such authority, in the event of failure on the part of Ward to respond to any. call; the appellant was not even interested in the ultimate result of the work which Ward did, since its terminal fee was paid by the owner of the car Saxon, if that car operated from that station on any day, regardless of what work was done by the car during the day, and certainly under no construction of the evidence was the appellant interested in the details of the performance of Ward's work.

Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So: 21.

In the case at bar it cannot be said that the appellant was even interested in the ultimate result of Ward's efforts or his work, as its terminal fee was to be paid by the car owner regardless of what work might be done by the employee of the car owner during any one day. Certainly there was no interest in the means or method of obtaining the results. Certainly there is nothing here which is sufficient to establish the relationship of master and servant. There existed no right on the part of the appellant to control Ward in the operation of the cab or the transporting of the appellee on the occasion in question, he, at that time was operating the automobile of a third party in his own discretion and judgment.

Hutchinson-Moore Lbr. Co. v. Pittman, 122 So. 191, 154 Miss. 1; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; 14 R. C. L., pages 67-76; 31 C. J., pages 473-475; 39 C. J., pages 1316-1323; McDonald v. Hall-Neely Lbr. Co., 147 So. 315; Louis Werner Sawmill Co. v. Norcutt, 134 So. 156.

The instructions given in behalf of the plaintiff, the appellee here, were error.

The amount of the verdict is unreasonable for the alleged injury of the plaintiff and appellee.

C. & G. R. Co. v. Coleman, 160 So. 37; Y. & M. R. Co. v. Lamensdorf, 178 So. 80; Teche Lines, Inc., v. Bounds, 179 So. 747.

M. V. B. Miller, of Meridian, for appellee.

This taxicab company was a common carrier. It owed its passengers a high degree of care. A contract for transportation was made with the taxi company by appellee. She paid the fare it demanded for her transportation. It held out to the general public that its drivers were bonded for the protection of its passengers. That was its position when taking appellee's fare, but after her injury they say, we know nothing of the driver. We had no control over him, and no power to control him. He was not our servant. This court will have little sympathy for such contention of appellant. The fact that this appellant advertised to the public and instructed its drivers to advise the public that the drivers of its cabs were bonded alone would take this case to the jury on the question of whether the relation of master and servant existed. There is no merit in counsel's contention that such a relation did not exist. In fact, the evidence in this case overwhelmingly shows to the contrary. Not only was the jury justified from the evidence in finding that such relation did exist, but that is the only conclusion the evidence justified.

Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Southern Express Co. v. Brown, 67 Miss. 260, 7 So. 318; Gulf Coast Motor Express Co. v. Diggs, 174 Miss. 650, 165 So. 293; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Callahan Const. Co. v. Rayburn, 110 Miss. 107, 69 So. 669; Gulf Refining Co. v. Nations, 145 So. 331; Kisner v. Jackson, 159 Miss. 424, 132 So. 90.

It has been decided in a number of cases by this court that where the trial court was not given an opportunity to pass on the question of whether a verdict was excessive that this point is not reviewable by this court. We respectfully submit that the trial court was without authority to pass on appellant 's motion for a new trial filed by it at its October 1937 term of the Circuit Court of Lauderdale County, said motion not being heard or determined during that term of the court, or said motion not being continued for hearing by an order of the court.

20 R. C. L. 303, section 84; 46 C. J. 293; Lutter v. Neubauer, 100 N.J.L. 17, 125 A. 113; Rosner v. Cohn, 81 N.J.L. 343, 79 A. 1056; Bates v. Woodward, 66 Colo. 555, 185 P. 351.

We respectfully submit that there is no merit in appellant's contention that the verdict is excessive.

OPINION

McGowen, J.

Appellee, Mrs. Nellie Ward, brought an action for damages for personal injuries against the Meridian Taxicab Company, Charles E. O'Steen and James L. Ward, alleging that due to the concurrent negligence of O'Steen and Ward, the driver of the taxicab in which Mrs. Ward was riding as a passenger, a collision occurred on the public streets of Meridian between the car driven by O'Steen and the car driven by James L. Ward, her husband, in which she was seriously injured. At the conclusion of the evidence of the appellee, she dismissed her suit against her husband. The case was submitted to the jury on conflicting evidence as to the negligence or not of O'Steen and Ward. The jury's verdict was for $ 4, 000 against the Meridian Taxicab Company, Inc., and O'Steen was acquitted of negligence by separate verdict.

The contention sharply presented here is that the court erred in not granting a peremptory instruction for the appellant for the reasons that the appellant was not engaged in the business of transporting passengers and that Ward was not a servant, employe or agent of the appellant. It is conceded that the verdict of the jury eliminated the question of negligence.

It is undisputed in this record that the appellant is a corporation chartered under the Laws of Mississippi; that in Meridian it maintains an office at a filling station where it employs several telephone operators; and that it maintains call telephones in various parts of the city where drivers of taxicabs engaged in transporting passengers may call in and notify the main office. This office is under the supervision and direction of Mitchell, the general manager of the corporation. Twenty-eight drivers were operating taxicabs owned by third persons. Saxon owned the car driven by Ward. These taxicabs are maintained, furnished with gasoline and oil at the office filling station, and the drivers of the taxicabs are furnished a parking place for their cabs. The taxicab company is furnished free office space on condition that the oil and gasoline for the operation of the taxicabs be purchased at a discount at that filling station. The owner of the car paid therefor.

The taxicab company has painted on the outside of the taxicabs the figures 4000, which is the trade name by which passengers call for transportation service in and around the City of Meridian. Each taxicab is given also a number, presumably for the identification of the driver. The taxicab driven by Ward on the occasion here involved was number 14. When a person desires transportation service they call this station and the operator of the telephone gives the order for service, with the address and name of the passenger, to the taxicab driver who drives his taxicab to the point designated by the passenger, collects the fare and transports the passenger to the desired destination. The fare in the case at bar was 10c and was paid by Mrs. Ward to Ward, and while en route to her destination this injury occurred. The driver received as compensation for his services twenty-five per cent of the amount collected by him while in the service, and he settled with Saxon daily, retaining his commission and paying the balance to Saxon. Saxon would then pay a fixed charge of $ 1.25 for each day his taxicab was in service to the taxicab company.

Under the system, the telephone operator of the taxicab company gives the orders for passenger service to taxicab drivers in regular order, but a particular driver can be preferred if a passenger requests a special driver by name and the driver can decline to take a specific order for service.

It is undisputed that the taxicab company has a rule that it will not call for service a driver who is drinking or under the influence of liquor; and that the manager of the taxicab company requires the drivers of the cabs to drive carefully and be courteous to the passengers. On occasions, the manager has required the taxicab drivers to inform passengers and others that the taxicab company insures passengers, and it has so advertised to the public. The amount to be charged in the various zones for the service is fixed by the manager of the taxicab company. The owner of the car has to pay to the taxicab company $ 1.25 for each day if the driver of his cab responds to a single call. In other words, it is a flat charge...