National Fire Ins. Co. v. Yellow Cab Co., 7089.

• Decision Date: 31 May 1943
• Docket Number: No. 7089.,7089.
• Citation: 171 S.W.2d 927
• Parties: NATIONAL FIRE INS. CO. v. YELLOW CAB CO., Inc. METCALF v. SAME.
• Court: Arkansas Supreme Court

Page 927

171 S.W.2d 927

NATIONAL FIRE INS. CO. v. YELLOW CAB CO., Inc.

METCALF v. SAME.

No. 7089.

Supreme Court of Arkansas.

May 31, 1943.

Appeal from Circuit Court, Pulaski County, Second Division; Lawrence C. Auten, Judge.

Separate actions by National Fire Insurance Company and by Mrs. E. F. Metcalf against Yellow Cab Company, Incorporated, to recover for loss of baggage. From a judgment on a directed verdict for defendant, plaintiffs appeal.

Reversed and remanded for new trial.

John R. Thompson, of Little Rock, for appellants.

House, Moses & Holmes, of Little Rock, for appellee.

KNOX, Justice.

Since the trial court directed a verdict in favor of appellee we must, on appeal, view the testimony in the light most favorable to appellant, and when so viewed the facts may be stated as follows:

Alighting from a train which arrived at the Missouri Pacific station in Little Rock, about eleven o'clock in the morning of April 25, 1942, appellant Mrs. E. F. Metcalf and her daughter-in-law, Mrs. Edwin R. Metcalf, intrusted their seven pieces of baggage to a station porter (commonly referred to as a red cap), and proceeded to the main entrance of the station. At about the time they reached the entrance of the station, a taxicab, belonging to appellee, was driven up, and its passenger discharged. Whereupon these ladies, with the assistance of the "taxi starter" and the red cap, who had followed with their baggage, entered the taxicab. The taxicab was a sedan type of car. Five pieces of their baggage were placed inside the passenger compartment of the car — part on the front seat with the driver, and part on the floor just behind the front seat. Two large bags, however, one belonging to each of the ladies, were placed by the red cap in the rear trunk compartment of the automobile. While the testimony does not show that the "taxi starter" either assisted in placing or directed the "red cap" to place, these bags in the rear trunk compartment of the car, the jury would have been justified in drawing an inference from the facts and circumstances that the bags were so placed with his full knowledge and consent.

After the baggage was loaded, the driver was directed to, and did, drive to the Albert Pike Hotel. It was raining at the time. For some reason, not explained, the driver failed to stop directly in front of the porte cochere. The older Mrs. Metcalf immediately rushed into the hotel to escape the rain, and her daughter-in-law followed as soon as she could pay the driver. At all times while the passengers and their baggage were being loaded at the station and unloaded at the hotel the taxi driver did not leave his seat or assist in any way. At the hotel all of the baggage, except the two bags in the trunk, were unloaded by the hotel porters, and brought into the hotel lobby, where immediately the ladies discovered the two bags were missing, whereupon they rushed outside, but the taxi had driven away. A rush telephone call to the cab company's office, followed by other calls throughout the afternoon, brought no result. The bags were never found and restored to the owners.

The loss of Mrs. Edwin R. Metcalf was covered by a policy of insurance, issued by appellant, National Fire Insurance Company. It paid the loss, and being subrogated to her claim, it and Mrs. E. F. Metcalf each filed their separate actions, which were consolidated for trial.

The weight of authority is to the effect that the standards of care which prevail as to common carriers, generally, apply to those engaging in the business of operating taxicabs, 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., § 2201, page 46.

Where a passenger's baggage is surrendered to and placed in the exclusive possession and control of the carrier, its responsibility therefor is that of an insurer. Kansas City Ft. S. & M. Ry. Co. v. McGahey, 63 Ark. 344, 38 S.W. 659, 36 L.R.A. 781, 58 Am.St.Rep. 111; Strickland v. Missouri Pac. Transp. Co., 195 Ark. 950, 115 S.W.2d 830, 10 Am.Jur. 441.

In the case of Strickland v. Missouri Pac. Transp. Co., supra, the appellant was the only witness. She testified that she...