Rathbun v. Ocean Accident & Guarantee Corp., 13828.

• Decision Date: 07 December 1921
• Docket Number: No. 13828.,13828.
• Citation: 299 Ill. 562,132 N.E. 754
• Court: Illinois Supreme Court
• Parties: RATHBUN v. OCEAN ACCIDENT & GUARANTEE CORPORATION.

299 Ill. 562

132 N.E. 754

RATHBUN

v.OCEAN ACCIDENT & GUARANTEE CORPORATION.

No. 13828.

Supreme Court of Illinois.

Oct. 22, 1921.

Rehearing Denied Dec. 7, 1921.

Error to Appellate Court, Third District; on Appeal from Circuit Court, Vermilion County; Augustus A. Partlow, Judge.

Action by Mabel Rathbun against the Ocean Accident & Guarantee Corporation. Judgment for plaintiff affirmed by the Appellate Court (219 Ill. App. 514), and defendant brings certiorari.

Reversed and remanded.

H. M. Steely and H. M. Steely, Jr., both of Danville, and Wilkerson, Cassels, Potter & Gilbert, of Chicago, for plaintiff in error.

Acton & Acton, of Danville, for defendant in error.

DUNCAN, J.

Mabel Rathbun, defendant in error, filed a declaration in assumpsit against the Ocean Accident & Guarantee Corporation, Limited, to recover for the death of her husband, Dr. James Corbett Rathbun, in the circuit court of Vermilion county. The amount of the insurance for death by accident, under three different provisions, is $6,000. The policy provides for payment of double that amount if the injuries causing death are incurred by the insured while traveling in or on a public conveyance (including the platform, steps, or running board thereof) or in a public carriage provided by a common carrier for passenger service. Plaintiff in error, the insurer, admitted liability for single indemnity, including interest, in the sum of $6,175. The court gave judgment for double indemnity, including interest, in the sum of $12,350. On appeal to the Appellate Court for the Third District the judgment of the trial court was affirmed. The case comes to this court on petition for certiorari.

The deceased was accidentally killed November 12, 1918, in a collision of the automobile in which he was riding and an interurban car at a road crossing about three miles west of Danville, Ill. On the afternoon of that date he was called to go to Missionfield, a hamlet six miles west of Danville, to see a patient. He telephoned to Rayle Bros., a copartnership composed of James, Alfred, and Asa Rayle, to send an automobile and driver to his office. Asa Rayle responded to this call with one of his firm's automobiles, and Dr. Rathbun drove the car from Danville to the scene of the accident with Asa Rayle seated beside him. There was another man in the car by the name of Zilko, who lived in Missionfield. It does not appear clearly from this record whether Zilko was a caller on Dr. Rathbun for medical services or was being taken home at the doctor's request. He had no connection with the garage company. All three occupants of the car were killed.

The sign in front of the garage read, ‘Rayle Bros., Garage and Storage.-Telephone 5252.’ The firm's letter and billheads read, ‘Rayle Bros., Auto Livery, Storage and Washing.’ In the telephone directory of the city of Danville Rayle Bros. had this advertisement: ‘Rayle Bros. Taxi, Telephone 1964.-Always at your service.-Taxicabs for all occasions.’ They had applied to the city clerk of Danville and had received a license to run a taxicab line in the city. One of the brothers testified, in substance, that they had no taxicab and did not authorize the word ‘taxi’ in their advertisements. The evidence in the record is that they owned only six cars in their garage and connected with their business, and that each of the brothers had a private car, all of which were used at funerals or in emergencies when more cars were needed, and that half of their business was furnishing cars for funerals. They had in their employ five or six drivers, who drove in turns, except where the call was for a particular driver. They had no cab stands in the city, and made no regular trips to depots or hotels. Their employees were instructed to solicit no business outside and to pick up no passengers at depots, hotels or elsewhereoutside their place of business. Their business came through the office at their place of business, by persons coming there or calling by telephone. They made no calls for less than 50 cents, and charged 75 cents from a hotel to a depot. Besides their business in the city they also hired their automobiles to persons to make trips into the country and to neighboring towns, and the charge on such occasions varied with the weather and the condition of the roads. They made such trips for all who were suitable persons, and when the weather was not bad or stormy. When a car was hired for such service into the country, the person hiring it controlled and directed where it should go, the route to be taken, and how many should go with him. If the caller took others with him it cost no more, as the car on such occasion was hired for an agreed sum per hour or an agreed sum for the trip. Dr. Rathbun owned and drove a car on some of his trips to the country and occasionally hired a car at Rayle Bros.' garage for such trips. He usually called for a car at the garage by telephone when he desired it, and a driver from the garage usually accompanied it. Sometimes he would only make one visit to a patient with a car and sometimes he would make a half dozen such visits, in which case Rayle Bros. would charge him an agreed sum per hour or an agreed sum for the trip, if it was for a particular distance. He had the privilege of taking any one else with him that he desired, or of stopping on the road and taking in other persons to ride with him, at no extra cost. He had full control of the car on such occasions, and directed where it should go and where it should stop. He had thus patronized Rayle Bros. during a period of about five years.

The main question in this case is whether or not plaintiff in error's liability is a single liability of $6,000 and interest or a double liability of $12,000 and interest. This question is to be determined solely upon the single proposition whether or not Rayle Bros. were common carriers in the service they were rendering Dr. Rathbun at the time that he was accidentally killed. This question does not necessarily depend on the fact whether or not Rayle Bros. were common carriers in the city of Danville in carrying persons from hotels to trains, or from trains to hotels, or from place to place within the city limits. We have stated the substance of all of the evidence bearing upon the question with reference to the service rendered Dr. Rathbun by Rayle Bros. While it is not stated in so many words, the clear inference in the record is that the service rendered by Rayle Bros. to Dr. Rathbun was by special contract, and that the service differed in no material way from the character of service ordinarily rendered by liverymen in letting teams and carriages to their patrons for trips into the country or from town to town.

[1][2] Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake to deliver goods or passengers in a particular case for hire or reward. 2 Pope's Legal Definitions, 1236, citing Pennewill v. Cullen, 5 Har. (Del.) 242; 10 Corpus Juris, 38. Hutchinson, in his work on Carriers (2d Ed.) § 35, defines private carriers for hire as such as make no public profession that they will carry for all who apply, but who occasionally, or upon a particular occasion, undertake for compensation to carry upon such terms as may be agreed upon. A common carrier differs from a private carrier in two important respects: (...