Pfaehler v. Ten Cent Taxi Co.

Decision Date07 January 1942
Docket Number15349.
Citation18 S.E.2d 331,198 S.C. 476
PartiesPFAEHLER v. TEN CENT TAXI CO. (two cases).
CourtSouth Carolina Supreme Court

Waring & Brockinton, of Charleston, for appellant.

Hagood Rivers & Young, of Charleston, for respondent.

BONHAM Chief Justice.

These two actions were tried in the Civil and Criminal Court of Charleston, and were heard together as they grew out of the same state of facts. The plaintiffs in the actions are husband and wife. The action of Edward A. Pfaehler is to recover damages for injury to his automobile and to his person; and that of Mrs. Annie C. Pfaehler is for injuries to the person. There were verdicts for each plaintiff. Briefly stated, the facts upon which the actions were tried, as alleged in the complaints, were these:

Mr. and Mrs. Pfaehler were driving their automobile on Meeting Street, in Charleston, on the 21st of June, 1936, when an automobile, the property of the defendant, was, as is alleged, carelessly, negligently and recklessly driven into and upon their automobile, which did great damage to it, and inflicted personal injuries to both of the occupants.

The defendant, by its answer, admitted the ownership of the automobile, but denied the other allegations of the complaint, and stood, on the trial, upon the ground that the automobile was not in its possession, nor being operated for its benefit, when the collision occurred.

As stated, the verdicts were for the plaintiffs. Upon the appeal of the defendant to the Court of Common Pleas for Charleston County, it was heard by the Honorable William H. Grimball Presiding Judge, who, by his order, dated May 28, 1940 reversed the action of the Civil and Criminal Court, and ordered the case back for a new trial. From that order appeal comes to this court upon two exceptions, as follows:

"1. In holding that a new trial should be granted because the Trial Judge charged the jury as to Ordinances of the City of Charleston, whereas he should have held:

" (a) The charge on the Ordinances was not asked for or objected to by either party.

"(b) The charge was in no sense prejudicial and did not affect the outcome of the case.

"(c) There was no denial by the Defendant that the car was being operated negligently and illegally, the defense being that the Defendant was not responsible for such operation.

"(d) The charge could not in any way have affected the outcome of the cases, since there was an abundance of proof that the taxi cab was being negligently operated and there was no denial of the same.

"2. In holding that the Defendant was not responsible for the operation of the taxi cab involved in the collision and that the Trial Judge should have directed a verdict, whereas the testimony showed:

"(a) That Arnold Rose, the driver and duly constituted agent of the Defendant, was in the sole and exclusive control of the taxi cab and placed an intoxicated person in the front seat next to the driver's seat, placed the ignition key where it was available for the starting of the car and himself left the automobile under the complete control and possession of the intoxicated person.

"(b) In that the said driver and agent of the Defendant failed to use due care and prudence in the conduct and handling of Defendant's automobile and allowed it to be taken away and negligently operated.

"(c) The negligence of Defendant's agent and servant, to wit: the driver was the direct and proximate cause of the collision, which resulted in the injuries to the Plaintiffs' persons and property."

It appears from the record that Arnold Rose, the employee of defendant company, on the day in question, had driven the automobile which collided with Mr. Pfaehler's machine, to a point outside of the city limits, to a place of entertainment known as The Cat and the Fiddle, to carry passengers for hire, whom he left at that place of entertainment. One of them engaged Rose to come back for him at a certain time, and paid him in advance for that purpose.

The plaintiffs introduced the testimony of Mr. and Mrs. Pfaehler, in relation to the incidents of the collision and the personal injuries of the two plaintiffs, and also the testimony of witnesses relating to the injury done to the automobile, and also to the personal injuries to the plaintiffs, and rested their cases there.

The defendant introduced the testimony of Joe Sottile, an officer of the Ten Cent Taxi Company, who swore that the company did not employ anyone by the name of John Varn, or authorize anyone of that name to drive the car in question. Thereupon the defendant offered the testimony of Arnold Rose, who testified that he was the driver of the automobile of the defendant company. He testified that on the 21st of June, 1936, he was in the employ of the Ten Cent Taxi Company, and on that day had in charge the car which was in the collision with Mr. Pfaehler; that he was not driving the car at the time of the collision; that it was being driven by "a fellow I had picked up named John Varn." He testified that he did not give anyone permission to drive the car. He stated that he had carried some passengers from the city to a place of entertainment outside the city limits, known as The Cat and the Fiddle, and had left them there. One of them, John Varn, engaged him to come back for him, and paid him in advance. He testified further:

"*** I went back there about 10:30 that night, and I found him sitting on a little step outside ***. I took him over to the car, opened the door and sat him in the seat next to the driver.

"Q. How drunk was he at that time? A. I would say that he was almost passed out, he was sleepy and drowsy.

"Q. What did you do then? A. I started the motor and started to back the car out to come to the City, and the fellow was lying with his arm on the door, and he looked like he was sleeping.

" Q. What took place then? A. I was just about to straighten out, when one of the girls called me and told me that I was wanted on the phone. So I cut off the ignition and went inside to answer the phone and when I came out again, he had just driven off with the car ***."

On cross examination this witness testified:

"Q. When you picked this young man up, you could tell that he was drinking? A. Yes.


"Q. And you say that you took him to the Hotel? A. Charleston Hotel.

"Q. And you then waited for him? A. Yes.

"Q. And then you went somewhere to buy some liquor? A. Yes.

"Q. And then he met the sailors and the girls? And they all took some drinks? A. Yes. *** The sailors came back to town with me.

"Q. And you left him at the Cat and Fiddle? A. Yes.

"Q. And he was still drinking? A. Yes.

"Q. And he paid you to come back for him and you went up to the Cat and Fiddle to bring him back to the City? A. Yes.


"Q. And you could see that he was a very drunk man? A. Yes.

"Q. He was staggering around? A. Yes.

"Q. And you grabbed his arm? A. I opened the door for him.

"Q. The front door? A. Yes.

"Q. And you put him on the front seat alongside of yourself? A. Yes.


"Q. And you sitting on the same seat with him? A. Yes.

"Q. And you turned on the ignition? A. Yes.

"Q. And you started the car and started to back out? A. Yes.

" Q. With the drunk sitting alongside of you? A. Yes.

"Q. And then someone called you to the phone? A. Yes.


"Q. Then you stopped your car? A. Yes.


"Q. You stopped the motor? A. Yes.

"Q. And left the keys in the switch? A. Yes.

"Q. Then you got out and went inside? A. Yes.

"Q. And you left this man sitting in the car? A. Yes.

"Q. And you then went inside to get your phone message? A. Yes.


"Q. And when you came out, this drunken man had driven off with your car? A. Yes.

"Q. Did you see him drive off? A. Just as I came out the door, he drove off.

"Q. You saw him driving it off? A. Yes.

"Q. Was anybody in the car with him? A. No.


"Q. You went on down to the scene of the accident? A. Yes.

"Q. And you saw that this car had been in a bad wreck with Mr. Pfaehler's car? A. Yes.


"Q. You could see that his car was ruined? A. Yes.


"Q. And you were put in charge of that car by the Ten Cent Taxi Company? A. Yes.

"Q. And you had complete charge of it that night? A. Yes.

"Q. And you still in charge of it when you left the keys in the lock with this drunk on the seat alongside of you? A. Yes."

At the conclusion of the testimony, the defendant made a motion for a directed verdict, which motion was refused. The presiding judge charged the jury generally as to the law of negligence, and other matters pertinent to the issues. The only part of the charge necessary to be set out is the following, which the court charged the jury without request by either party, and no exceptions or objections were made by either party: "As this collision happened in the City of Charleston the ordinances of the City of Charleston would apply to the drivers of both vehicles; and if either of these drivers violated any of the City Ordinances then he would be guilty of negligence per se or guilty of negligence as a matter of law, and if such negligence were the cause of the collision then that driver would be responsible for it."

The appeal of the plaintiffs from the order of Judge Grimball is predicated upon two grounds, which we have heretofore quoted herein. The first exception is based on the contention that a new trial should be granted because the trial judge charged the ordinances of the City of Charleston.

In the argument of this case before us, appellants' attorneys asked for, and were granted, the right to criticize the opinion of the court in the case of Steinberg v. South Carolina Power Company, 165 S.C. 367, 163 S.E. 881 which case turned upon the question of the applicability...

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