191 F.2d 459 | D.C. Cir. | 1951
Lead Opinion
Appellee Nemesh was injured trying to help a taxicab driver named Hamilton start a stalled cab. The cab belonged to one Thomas, a - member of the Harlem Taxicab Association, and bore the Association’s name and insignia. Appellee sued the Association for personal injuries said to have been caused by negligence in the maintenance and operation of the cab. The Association appeals from a judgment for the appellee.
Appellant Association’s president testified it had no' interest - in the cab, owned no cabs, got no revenue from the operation of cabs, and had no control over
An association of cab owners is estopped to deny liability to an injured passenger who has been induced by the association’s representations to ride in a cab that bears its name. Rhone v. Try Me Cab Co., 62 App.D.C. 201, 65 F.2d 834. But in the absence of estoppel an incorporated or unincorporated association of cab owners which neither owns nor operates cabs and has no control over their' operation is not responsible for the negligence of a member of the association, or the member’s agent, in operating his cab. An opposite rule would plainly conflict with familiar legal principles.
Since evidence more or less equivalent to that which the court struck was afterwards admitted without objection, the error in striking this evidence might perhaps have been harmless if the jury had been correctly instructed. But the jury were instructed that the presumption that the cab was being operated on behalf of the Association was “conclusive provided the owner of the cab * * * was a member of that association and provided he entrusted the cab to the driver of it at that time.”
The appellant did not strictly comply with F. R. C. P. Rule 51, 28 U.S.C.A, which provides that “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to1 consider its verdict * * But the court had repeatedly stated its view of the law in the course of the trial and had repeatedly prevented appellant’s counsel from proceeding on the opposite view. “The purpose of exceptions is to inform the trial judge of possible errors so that he may have an opportunity to reconsider his rulings and, if necessary, correct them.” Sweeney v. United Feature Syndicate, 2 Cir, 129 F.2d 904, 905-906. It would have been only a formality for counsel to ask the court, at the end of the trial, to reverse itself. An error in instructing a, jury may be raised by an appellate court, when justice seems tO' require, even though it cannot be raised by the appellant. Shokuwan Shimabukuro v. Higeyoshi Nagayama, 78 U.S.App.D.C. 271, 140 F.2d 13.
Reversed.
. Am. Law Inst, Restatement of the Law of Agency, §§ 265, 267.
. Our Rule 17 (i) provides that “ * * * the court, at its option, may notice and pass upon a plain error not pointed out or relied upon.” Cf. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037.
Concurrence Opinion
(concurring):
The question on this appeal is controlled by the law laid down in Callas v. Independent Taxi Owner’s Ass’n, 1933, 62 App.D.C. 212, 214, 66 F.2d 192, 194. There this court) dealing with a substantially similar state of facts, said: “* * * the car was operating as a taxicab at the time of the accident, bearing the peculiar colors and
In the present case the learned trial judge treated the presumption as conclusive — a presumption of law rather than -of fact, and so instructed the jury. The practical result, was to, apply estoppel as in Rhone v. Try Me Cab Co., 1933, 62 App.D.C. 201, 65 F.2d 834. However, that decision rested upon a contractual relationship of the cab company to a passenger, whereas the present case involves a non-passenger. Therefore, I agree that the judgment must be reversed.