Steiner v. Royal Blue Cab Co.

• Decision Date: 24 March 1933
• Docket Number: 24311.
• Citation: 20 P.2d 39,172 Wash. 396
• Court: Washington Supreme Court
• Parties: STEINER v. ROYAL BLUE CAB CO.

20 P.2d 39

172 Wash. 396

STEINER v. ROYAL BLUE CAB CO.

No. 24311.

Supreme Court of Washington

March 24, 1933

Department 1.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by John J. Steiner against the Royal Blue Cab Company, also known as the Royal Blue Cab and Blue Line Sightseeing Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for appellant.

Pearson & Potts, of Seattle, for respondent.

MILLARD Justice.

Defendant's taxicab collided with the plaintiff's taxicab. This action was instituted to recover for property damage and personal injuries sustained by the plaintiff in that collision. Defendant's timely challenges to the legal sufficiency of the evidence were denied, and the trial of the cause to a jury resulted in a verdict against the defendant. From the judgment entered on the verdict motions for judgment notwithstanding the verdict and for a new trial having been overruled, the defendant appealed.

The admitted facts are that shortly after midnight, June 5, 1931 while properly illuminated and properly parked off the high way adjoining Interlaken boulevard near Twenty-Second Avenue North, in the city of Seattle, a taxicab, in which respondent was sitting and of which he was the owner and operator, was struck by a taxicab owned by the appellant, a corporation engaged in the business of operating taxicabs in the city of Seattle. The only issue raised was whether the taxicab doing the damage was in the service of the appellant at the time of the collision. It was appellant's theory that the taxicab was stolen, and that the accident occurred while the thief was driving the vehicle. An additional defense theory is, that if appellant's employee was operating the taxicab at the time of the accident, the employee was not at that time engaged in the business of appellant.

Counsel for appellant insist that, under the rule which we have consistently followed since it was enunciated in Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59; Id. (Wash.) 135 P. 821, the prima facie case resulting from appellant's admission of ownership of the taxicab doing the damage was overcome as a matter of law, that no question of fact was presented for determination of the jury; hence the trial court should have sustained the challenges to the legal sufficiency of the evidence, or should have granted the motion for judgment notwithstanding the verdict.

The rule to which our attention is directed is that, when it is proved or admitted that the vehicle doing the damage belonged to the defendant at the time of the injury, a prima facie case is made that the vehicle was then in the possession of the owner, and that the person driving it was an employee of the owner, and was operating the vehicle in furtherance of the owner's business. True, the prima facie case rests upon a presumption which exists only so long as there is no substantial evidence to the contrary. It should be borne in mind, however, that the burden is imposed upon the defendant to overcome that presumption; and that we are committed to the rule that the question whether the offending vehicle was in the service of the defendant at the time of the accident is for the jury when the testimony against the presumption is that of interested witnesses. Samuels v. Hiawatha Holstein Dairy Co., 115 Wash. 343, 197 P. 24; Barach v. Island Empire Tel. & Tel. Co., 151 Wash. 279, 275 P. 713. The only testimony rebutting the presumption was that of employees of the appellant. None of those witnesses was a party to this action. However, they were interested witnesses inasmuch as they were employees of the appellant. Barach v. Island Empire Tel. & Tel. Co., supra. Aught stated in Babbitt v. Seattle School Dist. No. 1, 100 Wash. 392, 170 P. 1020, inconsistent with this view, is hereby overruled.

Respondent testified, that the night of the accident his taxicab became disabled while on a trip, and he parked his car as above recited. He walked to Twenty-Fourth avenue and Boyer street, hailed a motorist, and requested that he be conveyed to a point where he could telephone his office. That motorist, whose home was a few blocks from the place where respondent halted her, informed the respondent she would telephone his taxicab office to have one of respondent's employees, who came on duty at twelve midnight, come with another taxicab and tow the disabled taxicab to a garage. Respondent returned to his taxicab, and sat in the front seat thereof awaiting the arrival of his employee. He became impatient, looked at his watch, and ascertained that the time was then 12:45 a. m., inspected his taxicab to determine whether he could operate it to a garage, then returned to the front seat of the taxicab to await the arrival of his employee. Within two to five minutes thereafter, a Royal Blue Cab Buick sedan (appellant's taxicab) crashed into the left side of respondent's taxicab. Though dazed, respondent saw some one, who had the appearance of a taxicab operator, run into the brush; that is, the escaping driver wore a dark blue uniform, puttees, and cap, being the same kind of uniform as that worn by appellant's drivers. The driver of appellant's car was of stocky build; about 68 or 69 inches in height. This driver was pointed out in the courtroom by respondent as resembling the driver who escaped. A few minutes after the collision, respondent's employee and a helper appeared on the scene for the purpose of taking respondent's taxicab to the garage.

Dan Vivolo, appellant's driver, testified as follows: He was the operator of the offending taxicab from 4 p. m. June 4th until the time he claimed the car was stolen, June 5th. He was dressed as described by respondent. He received a call about 12:35 or 12:37 a. m. at his stand at the Hanstead Arms apartment house to go to apartment 308 of an apartment house at 1402 East Fir street, which is near Fourteenth street, about two or three blocks north of Yesler Way. He arrived at the apartment house about 12:42 or 12:45 a. m., parked his taxicab, in which he left the ignition key, on the east side of East Fir street, and entered the apartment house. He failed to find any apartment of the designated number 308. He then went upstairs to room 38 of the apartment house and tapped on the door. There was no response. He returned (it was then about 12:52 a. m.) to the place where he had parked his taxicab. The vehicle was gone. He looked around for a couple of minutes, went to a pay telephone and communicated to appellant's dispatcher the information that the taxicab was stolen, and requested that the police department be so advised. Pursuant to the dispatcher's orders, Vivolo waited at 1402 East Fir street for one of appellant's drivers to call for him and take him to the police station to make report of the theft. About 1 a. m. the driver arrived and conveyed Vivolo to the police station, where he arrived about 1:05 a. m. He denied that he was on Interlaken boulevard the night of the accident.

Appellant's dispatcher testified that he received the call from Vivolo at the time stated; that he sent a driver to...