Van Court v. Lodge Cab Co., Inc., 27305.

• Decision Date: 13 April 1939
• Docket Number: 27305.
• Citation: 198 Wash. 530,89 P.2d 206
• Parties: VAN COURT et ux. v. LODGE CAB CO., Inc., et al.
• Court: Washington Supreme Court

89 P.2d 206

198 Wash. 530

VAN COURT et ux. v. LODGE CAB CO., Inc., et al.

No. 27305.

Supreme Court of Washington

April 13, 1939

Department 1.

Action by William A. Van Court and Elizabeth A. Van Court, his wife against the Lodge Cab Company, Inc., and the AEtna Casualty &amp Surety Company, for injuries sustained by the plaintiffs while riding in a taxicab owned by defendant Lodge Cab Company, Inc. From a judgment for the plaintiffs, the defendants appeal.

Reversed with direction to dismiss the action.

Appeal from Superior Court, King County; Ralph C. Bell, judge.

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

John J. Sullivan and Carl Pruzan, both of Seattle, for respondents.

STEINERT Justice.

Plaintiffs brought suit to recover damages for injuries sustained by them while riding in a taxicab owned by defendant Lodge Cab Co., Inc. AEtna Casualty & Surety Company was made a party defendant for the reason that it was surety upon the bond executed by the cab company in accordance with Rem.Rev.Stat. § 6383. Trial by the court, without a jury, resulted in findings, conclusions and judgment in favor of plaintiffs. Defendants have appealed.

Appellants make two contentions: (1) That, under the evidence, the trial court should have found, as a matter of fact and of law, that at the time of the accident the taxicab was not being operated in the course of the owner's business, and (2) that respondents were guilty of contributory negligence. Upon these questions the evidence consisted solely of the testimony given by respondents and by one of the owners of the cab company. In order to present a clear and complete picture of the case it will be necessary to set forth the material testimony of respondents pertinent to the legal relation between themselves and appellant cab company at the time of the accident.

At about ten o'clock in the morning, on March 26, 1937, respondents, husband and wife, were standing on the sidewalk near the corner of Twelfth Avenue and Main Street in the city of Seattle. A taxicab approached, driven by a negro who was accompanied by a white man sitting beside him. What then occurred will be stated in respondents' own words. On direct examination, Van Court testified as follows:

'A. He drove up there and asked where they could get any liquor, and I told them the liquor store was the only place I knew of.

'Q. Who was in the taxicab? A. There was the driver--the feller with the cap on--the colored feller.

'Q. Was there another man in the car at the same time? A. Yes, sir; a white feller.

'Q. Where was he sitting? A. Beside the driver, in the front seat.

'Q. Did he have a taxicab driver's cap or uniform on? A. No, sir; he didn't have no cap; he was dressed plain. The feller driving had the taxicab uniform--had a cap--that was the only uniform there was about it.

'Q. What did you say when he asked about liquor? A. I told him the liquor store was the only place I knew to get any liquor. And he said he didn't have no liquor permit, and I told him I had one, and I was going that way, if they would drive me by there I would do it, and he said 'It costs money to ride in my taxicab.'

'Q. Who said that? A. This feller that was driving.

'Q. The colored man? A. Yes, sir. The colored feller. And I told him I would give him fifty cents if they would take me by the liquor store and take me home, and he turned to the white feller and asked the white feller if that was okeh, and he said 'yes, sure, that is all right.' And we come down to Jackson. The colored feller said that 'If you will let me have the permit I'll get some myself. I'll go and get it,' and I handed it to him, and he went in to get the liquor, and they turned him down on the signature, and so he had told me--I had give him money out of my pocket to pay for me a pint of liquor, and he said 'They turned me down, because that wasn't my signature on that,' and he said 'You will have to go and get it,' he said 'It's all paid for.' And I went in and the man said he hadn't paid for it, but he bawled me out for letting him have my liquor permit, and he give me the liquor permit back, and he wouldn't sell me no liquor, and we come down to Second and James, and I went in and got the pint of booze myself, and the feller that was in the cab, he never said nothing about buying any, and never offered to give me any money to buy any, and I bought the pint for myself and went home.'

And, on cross-examination:

'Q. And you were going also to lend him your liquor permit to get him some liquor? A. Yes, sir.

'Q. And you did that? A. Yes, sir.'

Mrs. Van Court testified as follows:

'Q. Calling your attention to March 26, 1937, the day of the accident, will you tell us in your own way what happened from the time you and your husband first saw the taxicab and its occupants? A. Well, he drove up by the side of us standing on the corner, and asked my husband if he knew where he could get some liquor, and my husband said at the liquor store, and he had his permit, and he said--we said 'We are going home', and he said 'You know this is a taxicab; you will have to pay.'

'Q. Who said that? A. That colored feller.

'Q. Where was he seated in the taxicab? A. He was driving, in the front seat.

'Q. Did he have the driver's cap on? A. Yes, sir.

'Q. Proceed. A. And then my husband paid him, and he asked if he would take him to the liquor store, and he went by the liquor store, and so he went in to get the liquor. I don't remember--I guess he wouldn't let him have it.'

It appears that the Van Courts, at all times during their association and companionship with these two men, thought that the negro, whose name was Barnett, was the regular driver of the taxicab and that the other man, whose name was White, was a passenger.

After the liquor had been purchased, the party of four went, in the taxicab driven by the negro, to respondents' home located at 815 Eighth Avenue. What occurred there will, likewise, be stated in the language of respondents. Van Court testified on direct examination, as follows:

'A. We went home, and when we got home this white feller wanted me--he said 'Would you give a feller a drink of that?' And I said 'Sure; if you want a drink come on up; I'll give you a drink.' And he come on up with me, you see, and the taxicab driver, he got out and come up also.

'Q. Did he ask for a drink? A. No. He didn't ask for no drink at all. He didn't say nothing about a drink. And I went in and I taken a drink myself, and I went to the bathroom, and when I come back in the meantime there was a couple other fellers, friends of mine, had dropped in, and when I come back the pint of liquor was gone, and then when this couple of friends come in they said 'Van, I'll pay this feller, this taxicab feller, if you'll go down and get another bottle and come back.''

And on cross-examination, as follows:

'Q. And you went up to your house and you all went in to drink? Did you live upstairs? A. Yes, sir.

'Q. You went up some steps? A. Yes, sir.

'Q. And you opened the bottle and you all took a drink? A. Yes, sir. That is, I taken a drink, and I went to the bathroom.

'Q. You went to the bathroom; you didn't see the others take a drink? A. No, sir; I didn't. I just seen them have the bottle.

'Q. How many drinks did you take? A. One.

'Q. How much of a drink was it? A. An ordinary drink.

'Q. How much would that be? A. That depends on how much whiskey there was. I have seen the time I could drink a pint and it wouldn't be much more than a drink for me.

'Q. And in this case---- A. I was a little bit liberal. I wanted to give them all a chance to get a drink. * * * 'Q. And when you got up to your house and that liquor was consumed, whoever drank it, you decided you wanted some more liquor? A. Some people come in.

'Q. In the meantime you decided you wanted liquor? A. They was the ones wanted it.

'Q. You were going to take the taxicab and go down to the liquor store and get more liquor? A. Yes, sir.'

Mrs. Van Court gave her version of the affair at the house as follows:

'Q. You don't know what happened inside? A. No, sir. I didn't pay much attention to that. And he come back out then and when we got home he asked if it was all right to go in--this white feller asked if he could go in and get a drink.

'Q. When you left the liquor store on Jackson Street where did you go from there? A. Well, I don't know if he went by--I guess he done got the liquor then and went home.

'Q. Where did he get that? A. He didn't get it in the first place. We went by the other liquor store and got it.

'Q. On Second and James? A. Yes, sir. Then we went home, and that is when the white feller asked if he could go in, and the colored feller just follered him, and they went in the house, and my husband taken a drink and walked out, and it seemed I taken some and made me a hot toddy, and they drank it, but I wouldn't say that, because another feller I know, Vanderpool and Mr. Lamot, had come in. They taken a drink, and Vanderpool asked if Van wanted to go down and get a pint--he didn't have no permit--and he said yes, and he give him a dollar to get that, and he give the fellers--paid for the taxi fare.

'Q. Who did he pay? A. To the colored feller.

'Q. Then what happended? A. Then we went down the stairs down to get this liquor.'

The party of four then entered the taxicab and proceeded toward a liquor store located at Second Avenue and James Street with the view of getting more liquor; Barnett, the negro, again drove. It was during this trip that the accident occurred. For the details we will again quote respondents.

Van Court testified:

'Q. And when you got in the taxicab what happened? A. We got down between Third and Fourth on Columbia, and he...