*1 ORSDEL, Associate VAN Justice. CO., CITY Inc. SIMON v. CAB the Su- This action was Columbia preme District of No. 6265. Court below, de- appellant, Appeals for the Court of United States damages fendant, City Company, for Cab District of Columbia. the al- sustained Argued 8, 1935. Jan. one leged negligence the driver conclu- At the the defendants cabs. May 1935. Decided mo- sion of all the evidence 11', Rehearing Denied June tion directed favor. From turn verdict in its appeal was taken. judgment, Semmes, appears Hall that one James Sr., defend- been had operate June, ant defend- paid the taxicab in He question. daily, he busi- ant did whether $3.25 retain all not. entitled to ness or He was He earned above that amount. the cab at Md., Park, residence in Tacoma each required report to defendant day. he returned home When evening, it was his custom to leave the driveway cab house, beside his keys in the switch leave of the car. Semmes, son, Jr., a His Hall James hacker, occasionally the cab licensed drove night, sometimes with and sometimes permission. The without his father’s driving night on the was accident, the car fa- having it without his taken and, permission, discharging after ther’s returning home about passenger, past morning half two on of October 4, 1932, when the accident occurred. belonged to one of the fire Plaintiff HITZ, dissenting. J., companies, and was' in attendance city. Tenth in this He was fire on street replacing in a fire engaged in the hose Semmes, taxi- Jr., driving the truck when him, leg crushing into be- ran wagon, the leg tween taxicab and hose severely require injuring as to amputation. negligence, there On issue ample evidence to take the case to the Ottenberg, George Horning, D. Louis jury, but verdict on directed Ammerman, Jr., all of and H. M. Wash- Semmes, ground Jr., was not C., appellant. ington, D. op of the defendant for the Newmyer 'Bress, and David Alwin L. G. taxicab, eration of the and that the com C., Washington, appel- both of pany therefore not liable. This raises lee. question necessary de single MARTIN, Justice, termination of this case. The uncontra Chief Before Semmes, ROBB, ORSDEL, Sr., HITZ, evidence discloses that dicted VAN GRONER, his contract defendant to under Justices. *2 tion of error.” taxicab, author- law the was without operate the was n quot op- holding, support or in this any to use of ity permit one else approval et ux. ed with from Holzheimer purpose whatever. erate the cab Brothers, 10 think, therefore, or not v. Lit 262 Pa. whether that the lia cab A. far as the as follows: “So permitted his son to drive he concerned, bility of is imma- the defendant was of the accident night on the Semmes, plaintiffs’ wholly upon the a case rested ’could terial. In neither event presumption. direct evi scope There was no Sr., the of to this extent extend prin- dence as the owner of the to who was agency the consent of without injury, nor as agency we truck that inflicted the cipal. of This rule charge to who of it the case. It was was in when think is decisive of this evidence, Sr., Semmes, collision There power occurred. not the of within cab, however, name permit either that the truck bore the any one else to the use company. of company’s the defendant This was suf of the business the course establish, otherwise, prima the ficient to a facies or without the consent Semmes, night that the defendants were the company; Jr., on the owners truck, the also that then in question the it was cab without father, charge employee. This permission the their servant or of his the situation and, evidence, presumptive fre is not different from car was as has a case where a ruled, quently quite has been stolen and occurs been sufficient an accident carry jury.” operated by when it the case to the the thief. Under no circumstances such a case could the case, however, The instant can be clear- owner of the car be held liable. ly differentiated from the Callas Case. present The facts case are all dis- Counsel for invoke the rule closed, leaving up- no room for reliance law that where the injured presumption. on presump- a Whatever hearing a taxicab the name of the own tion arose was overcome uncontradicted presumption arises that er, the ve proof. arises, clearly Where that situation custody hicle is in the the busi a motion for a directed verdict defendant, and that the driv ness of the granted. If, however, be the evidence scope agent acting er is its within is contradictory, or reasonably subject employment. presumption, of his contradictory interpretations, as was held alone, to establish is sufficient Case, in the question Callas of liabil- case, prima a facie and if uncontradict ity then jury. is one for the ed, carry jury. the case to the In case, In the instant defendant admits Independent Callas Taxi Owners’ As taxicab, admits the sociation, C. Sr., Semmes, employment peculiar the taxicab bore the proved conclusively, the time of colors and trade-name accident, posses- in the the car was it held that this was Semmes, Jr., stranger total sion presumption sufficient to raise that authority, possessed no ex- custody “in it was and on the business operate the press implied, to car of the whose name it bore.” The carrying or to use it the defendant president testified that it business; prior and in- and whose on its that and intimated own a cab did not the cab was without its knowl- stant use of business, there not in the it was Indeed, these facts stand edge or consent. operator to show that the evidence was no uncontradicted, to submit the issue member, not a was or was of the cab or not to the of whether servant, company. It was agent presumption es- overcome sufficient to that these facts were there held .suf case, prima facie tablishing would presumption to the ficient to overcome rights of the defendant to submit authorizing take the court extent of sympathy speculation and jury. point from the On the case jury. effect said: “Whether the court to conceive case difficult by the was overcome tes presumption automobile, of an used compa president of where timony pub- purposes, or business privately, his in ny did not own a taxicab, held liable could be licly as a it was not the cab busi timations that by the while caused car accident ju for an of fact ness was a to the own- person unknown ques operated consequently its decision as a ry, plicable implied where express or the issue relates er and without agent of an permission. alleged neg- owner for the Clear capacity ligence owner, operation of an in whatever car.” charged the use *3 knowledge car, the the cannot without Special placed stress is counsel for his transmit or owner consent of the plaintiff on the case of Schweinhaut v. to the own- agency to a unknown Flaherty, 151, App. 60 D. C. 49 F.(2d) er, liability on the thereby impose 533, 535. In agent that case the of the op- negligent for the reckless or owner company taxicab in whose hands the taxi eration of the car. placed cab had been purpose for the soliciting that and obtaining Nor does follow fares and trans always occurring porting passengers departed accident is liable for’an pur from the pose of his car operation for negligent the which he was to take servant, employee. In a agent, or woman friend to her of residence Implement Compa- free Peabody charge. v. Marlboro While engaged, thus 81, ny, App. F.(2d) collided 63 D. C. 72 with pedestrian, and the in Supreme jury complained the (certiorari 82 denied of was sustained. It was Court, 601, 55 293 U. S. therefore contended company that the was company responsible ad- not defendant -), for the reason that its the automobile servant agent or mitted the was not engaged in the thereof, regular operator that the course of company’s but denied the business accident, operating at the the time the time the accident occurred. We the de- employee of held the agent company liable, it as the or but in testimony approached disclosed that we fendant. so close to the line that general rule of liability driver of the car was announced in this case company, employ and was will of defendant admit of little if extension. custody the car and in and control of court, In that case the speaking through of the mitted in the business to use Groner, Mr. clearly stated the rule Justice in company, and when it was not such liability cases, in taxicab as follows: garage. use to it in his own “In circumstances, these it seems to us testimony of the indulge The uncontradicted showed courts to no subtle reasoning in agent extending that at the time of the accident the doctrine of nonliability personal mis- the car on a owner of such an in- who, sion, indirectly strumentality directly connected in his search gain profit, business, places company’s with the one in these irre- sponsible hands, court, knowledge speak- require consent. but rather Martin, dis- supervision him ing through Mr. Chief such of his servant as will Justice Case, and, hold- tinguishing disregard the Callas avoid disobedience to and rules, or, do, directed had been ing failing that the verdict so to when in- properly said: “It stranger, for occurs to shoulder Independent responsibility. in Taxi opin- true that Callas v. Hence are of we Association, App. D. C. Owners’ ion that whatever be the in rule operat- who, F.(2d) private we held that a car the case of a chauffeur in orders, the time of an acci- ed as a taxicab at violation of master’s takes his dent, peculiar colors and bearing private trade automobile and uses it without was le- knowledge name of defendant master’s and for the servant’s presumed custody alone, or, gally purposes to be in the in the case of one company on the business of the whose intrusted the moment its owner Curry name it bore. But v. Steven- specific purpose an automobile for a son, 534, who, D. C. disregard purpose, of that. uses prima another, we held that where facie infer- it for the rule in the case one possession who, of the hire, ence of automobile at passengers as a carrier of accident, arising places the time of an automobile in the hands ownership, the fact of purpose is overcome un- soliciting servant proof obtaining contradicted that fact transporting au- 'fares and them from possession another, who, tomobile part city was not of the own- one of the circumstances, er agent, or his servant or admittedly in such would ju- pedestrian one and not for the negligently be liable to a ry. equally servant, think ap- jured by rule reasonably inju- company kept for an neither held to include a record thereof, the serv- nor ry expiration. checked its inflicted servant, in violation ant where that company participated is, rules, here the the master’s case, clearinghouse arrangement with other her transporting friend to free a companies such upon drivers, to check think, nearby. noth- home There we kept two cruising inspectors on the ing a rule.” novel in such streets at all times. case, however, easily distin- That authorized, guished from the one at bar for the rea- induced, continuous speculative method of compensa- charge driving it at of the cab and tion for joint benefit of owner and *4 Here, the time the accident occurred. driver, inevitably which led the driver occurred, the when the accident being cab to work rapidly too long. and too Both by stranger total driven father and hackers; —one son were licensed company express had no whom the both lived house; in and the implied posses- His contractual relation. that, evidence indicates of the automobile was not such as in sion any them, between by day father drove to attach manner defend- and the by night. ant. On the evening of this accident the affirmed, judgment The with costs. o’clock; father reached home at 7 left the cab in open driveway, HITZ, (dissenting). key switch; whence the son took it Justice 7:30, at cruise; started on a hacking agree I am dis- judgment unable with the charged his passenger last opinion o’clock of the court in this case. in the morning; and struck plain- below was a member of shortly tiff way thereafter on his to his department the fire of the District of Co- home in Maryland, where the cab was lumbia, injured while at on a Wash- kept. ington street a cab of the defendant The son company, the driver of which admitted testified that he had frequent- ly used the looking' way that he in another direc- cab in with his fa- permission, ther’s time of the collision and did tion at the but did not ask it on occasion; see or his hose reel’ un- the father testified that he had frequently permitted had him. til after he struck the son to use the but not specifically on this cab the de- night; while both testified that knew grievous injury fendant authority of no from the company for the plaintiff, negligence and the son’s use of the cab at or tha1 admitted, agency driver are but his is de- company was aware of his nied. it. father of the driver was The trial court directed a verdict for to drive this agreement an oral upon judgment the defendant which company father, between the and the entered, and now this affirms .court was said to have been instructed to action on what it calls elementary “the mit no one else to drive it. (cid:127) agency,” which, think, Ias en- agreement required the father to tirely miss the mark. pay company per day, and to $3.25 For, my view, precise arrange- exhibit the car as going concern at ment between the father and son is im- company’s garage hours, once issue, material and the defend- between 7 a. p. m. and 7 earnings m. All ant is liable princi- under other above that sum were retained the fa- ples than the rules of ther. accounting required; No no controlling peaceful transactions of worn; mileage kept; no uniform no iden- ordinary business between man and man. furnished; tification card no fixed stations required; might the drivers cruise' In the Supreme turntable cases the will; were long ago the Court established the doctrine cars in their own at home dangerous or else- that the owner of a but at- where, although company’s garage instrumentality, was tractive which is left ac- ample to accommodate all its cars. public, Each cessible to the is bound to antic- driver license, furnished his own ipate probable hacker’s use invasion un- Goodwin, to the be persons, Ilidge done.” P. unqualified v. 5 C. & authorized others; and even injury of themselves or weak, neg- and the where the evidence is Lynch In the leading case of v. Nurdin tres- ligence slight, is a and the victim (1 Q. B. 29)D. said that Lord Denman he omit- yet liable if passer, the owner is “if I guilty leaving am precautions guard against ted reasonable anything dangerous where I know it to City injury. & P. Sioux such use and. extremely probable that some other Stout, 21 L. R. Co. 17 Wall. R. Ed. v. unjustifiably will set it in motion McDonald, 745; Ry. P. Co. Union third, and if that 262, 14 S. U. about, should be pre- 434; C., 411, 54 Best v. D. 291 U. S. S. sume the sufferer have redress Ct. Ed. 882. 78 L. two, action both or either of the unquestionably against the first.” Ellenborough And Lord extended this years trespassing coming And 57 protection dogs ago today even Lord Chief Cockburn, accidentally sphere of language strikingly within the an at- Justice applicable instincts, though present conditions, alluring to their traction said that appears “It Attorney England argued us that a General man who leaves public place, in a along persons, Englishman that an could without avail *5 amongst children, them pass, have ground traps on his lawfully his own bait a dangerous may machine which vermin, being be fatal an- without his own anyone it, who any touches might without dogs neighbor to his whose swerable precaution against mischief, is not trespassing on his get caught therein while guilty negligence, but of land. character, very reprehensible and not otherwise, held Ellenborough Yet Lord imprudent less so because the asked, is there in difference “What unauthorized act of another be nec- trap drawing dog into a reason between essary to realize the mischief to which which he can- means of his instinct negligent act of the defendant has resist, him there manual putting given Chambers, occasion.” Clark v. 3 knowingly dog If a man force? 339, Q. 15, B. April D. 1878. bite, any person com- accustomed cases, These English well-considered bitten, an action lies ing in his them, and' others like edly approved by repeat- have been owner, though he had no against the malice Supreme Court of Townsend against the individual.” v. States, 262, the United as in 152 U. S. Mathew, 9 East. 277. pages 278-280, 619, at 14 S. Ct. 38 L. gun, And in a case where a errone- Ed. 434. And it is matter of common ously thought by the owner to be unload- modern knowledge that automobiles are ed, left in a accessible to chil- dangerous English more than horses on dren, discharged inju- one to the fifty years ago, or than turntables roads another, ry great judge held any sporting guns, ever at were liable, care, “as owner want of traps. pedestrians baited Yet Wash- by leaving gun that is without draw- her firemen their ington, and at hazardous ing charge, the instrument was left streets, pro- her receive duties on less mischief, capable in a state today her than giv- tection under law responsible. law will hold the defendant trespassing dogs England by en undoubtedly; It is a hard case think century ago, English against law a the action is maintainable.” Dixon v. instrumentality deadly dangerous more Bell, 5 M. & S. 198. anything in than use outside of actual So, warfare, man left where a his horse and ply pub- cart which attendance, the street without public on calling pri- lic streets in a for a horse, whipped man another re gain, gracious protection vate under the third, sulting to a “elementary agency.” rules of Tindal, was held liable Chief Justice Two recent cases in this court were although it was contended that the man upon principles based which I think con- whipped horse, who and not the here, man trolling in the first of which we him, responsible, who owned but the’ cab driver deviating held that a from- his said, court “If a man chooses to girl, leave take home his course to and there- street, a cart standing on the by killing pedestrian, must was still in the any take the risk of /mischief that may employ employer, who remained
511
act;
we
second
eral
moral
for his
while
sense.”
liable
District
Columbia
agen-
Colts,
63,
73,
driver’s
v.
282
page
that the
U. S.
51
held
177;
cy was matter
fact
Hess v. Paw-
loski,
judge.
352,
page 356,
matter of law
U. S.
47 S.
632,
Ct.
sibility assume evil, great duly growing at- fol- sess, disappears at and which daily dashing developed. it, lowed and are tempt enforce youth- in the hands streets about our For while these cases differ as much uninsured, drivers, irresponsible, ful in their facts and circumstances as speculation. driving on their underlying goes them all ownership prop- doctrine that fol- or control of obligation of think the erty of obliga- certain sorts involves an dissolved when and is not lows the tion recognize potential danger hands in- into unauthorized it finds its herent in its nature. agent. Which duty raises an affirmative ordinary foresee that property likely such to be situation, ob- adequate because used or persons moved unauthorized is to answer ligation of the owner purposes; unintended which in turn thing. also for agent, public creates obligation guard such property against movement, to foresee that such legal use or And his lest profit, come capable of thing alluring, so innocent. mobile, a motor- dangerous, as and so so cab, There can appropriate be no more oc- likely unauthorized to be used apply casion to this doctrine than this injury if left in ac- public persons to the case, in a engaged where the owner is and unlocked. places unguarded cessible only upon the public calling, performable therefore, to take reason- bound He license, public public streets such use and prevent precaution able man a nec- negligently car maims a discharged duty is not injury, which such upon essary public duty .those streets. open space by leaving his cab an England As Lord Chancellor key the switch. cently asking the aid of Parlia- said when any recogni- indicate nothing to I find English dealing ment for the courts in public in the responsibility tion of problem, “the mo- with their automobile profit-sharing defendant’s possibilities great- tor car has within drivers, who are irresponsible with mitted unhappiness for the human er evil and of its am- outside *7 keep its cabs any invention that has ever been race than opportunities outside ple garage, Buckmaster, discovered.” Orator Jus- jurisdic- supervision, and,beyond tice, (Edited by Johnston, 1932). James long as at a tion, months daily judgment I think the should be and make daily portion, pay their versed, remanded for and the cause a new the cab. profert of trial. collision, left after And life, and the crippled GRONER, responsibility, free Justice. the same company continued principle in the agree I views ex- on the same loose driver with terms, dissent, pressed Judge HITZ’S damaged repairing his apply them here would be feel another. rewarding him with power and to assume the Legislature. functions I therefore foregoing cases are concur in the cited by the point, but because reached court. they conclusion being precisely