Haser Ex Rel. Haser v. Pape

A. J. Gronna, District J. This is an action in tort wherein the. plaintiff, a'girl of fourteen, while riding in a taxicab, was. assaulted and raped, with *38 force and against her will, by the driver and also by another man. The suit was brought against the cab company and the driver for money damages. Trial was by jury. Inasmuch as the cab driver did not answer the complaint and was in default, the jury was directed to return a verdict against him and to assess damages in favor of the plaintiff in accordance with instructions as to the law of damages. The jury assessed damages against the cab driver in the sum of ten thousand dollars. On the other hand, the judge, upon motion of the cab company, directed a verdict for the cab company over the resistance and objection of the plaintiff. This was error, but unless it was prejudicial error, the judgment must be affirmed and a new trial denied. Romkey v. Barnes (1942) 72 ND 127, 133, 5 NW2d 79. The error consists of the violation of a mandatory statutory provision forbidding the direction of a verdict over the objection of the adverse party. 1947 Suppl, 28-1509, being Laws 1945, chap 220. In construing a prototype of such statute, this court has held that prejudice will be presumed from such error and that the party against whom the error is committed need not show that she was, in fact, injured by such error. Ellsworth v. Martindale-Hubbell Law Directory (1939) 69 ND 610 at page 618, 289 NW 101, wherein the opinion continues at page 618: “The presumption of injury, however, is not conclusive. The effect of the presumption of prejudice is to place the burden on the party in whose favor the error might tend to operate to show that the other party was not, in fact, injured by such error. McPherrin v. Jones, 5 ND 261, 65 NW 685. The ultimate question is still the effect of the error on the rights of the party against whom it is committed.” A motion for a directed verdict is like a demurrer to the evidence. Bailey v. Davis (1923) 49 ND 838, 845, 193 NW 658. Such motion entitles the party against whom it is made to the most favorable views of her case that the evidence warrants as well as to every reasonable inference therefrom. State v. Yellow Cab Company (1932) 62 ND 733, 736, 245 NW 382; La Bree v. Dakota Tractor & Equipment Co. (1939) 69 ND 561, 563, 288 NW 476; Armstrong V. McDonald (1942) 72 ND 28, 4 NW2d 191. *39 If the verdict had not been directed, the jury could have rightly found the following essential facts: One Floyd Powell had worked for a short time on the farm of plaintiff’s father. Pie left this employment and went to nearby Jamestown. The plaintiff, Ardene Haser, age fourteen, was living with friends at Woodworth, attending high school. Wood-worth is a small town near her father’s farm and may be considered a part of the community surrounding the city of Jamestown, a community metropolis. Woodworth is situated about forty-two miles northwest of Jamestown. Defendant, Elmer Pape, was employed as a cab-driver by the Defendant, Yellow Cab Company, a corporation. The cab company operated in the city of Jamestown and also inter-city in an area which included Woodworth. Powell employed Pape to drive him to Woodworth. Arrangements were made with the clerk in charge of the cab office to hire the cab for three hours at $2.50 per hour. Powell paid $7.50 in advance for the three hours. On the way to Woodworth, Powell explained to Pape that he wanted to get Ardene Haser into the cab and told Pape a story to repeat which would induce her to come along. The Hasers had a younger daughter who was afflicted with a chronic heart condition and the story Powell concocted and which Pape repeated to Ardene was that her little sister had suffered a severe heart attack and that her parents had hired the taxi sent to Woodworth to bring her to the farm home. Both Ardene and the lady with whom she stayed at Wood-worth believed this false story. Ardene entered the cab and sat in the front seat. After they had started out of town, Powell, who had been hiding in the back seat, made himself known. For four hours Pape and Powell drove Ardene about the countryside against her will. Both of them raped her. Powell threatened to kill her if she told others. Finally she escaped and walked and ran to her rooming place at Woodworth. Pape and Powell then drove to Jamestown and Powell paid the cab company for the additional time he had the use of the cab. The next day the crime was reported and both men were arrested. They pleaded guilty to rape and were sentenced to the penitentiary. *40 The trial court directed the verdict of dismissal on the theory that but one conclusion could be reached from the evidence, namely, that the cab-driver was not acting in the scope of his employment when he invited the plaintiff to become a" passenger, and accordingly he was without authority to create the contractual relation of carrier and passenger, so that, as a matter of law, the plaintiff was not a passenger and therefore the cab company- was not under any duty to her; also that even though plaintiff were a passenger, the cab driver was not acting within the scope of his employment in committing the assault. However, if we applied the rule that the principal need merely respond in damages for injuries inflicted by his agent while acting within the course and scope of the agent’s employment, we would ignore the distinct doctrine applicable to carriers of passengers. Co-op Cab Co., Inc. v. Singleton (1942) 66 Ga App 874, 19 SE2d 541; Korner v. Cosgrove (1923) 108 Ohio St 484, 141 NE 267, 31 ALR 1193. In the case at bar, defendant, Yellow Cab Company, a corporation, is a common carrier of passengers, being a carrier of passengers for hire and for all persons indifferently. The same rule and measure of responsibility attach to taxicab earners for the acts of their employees as apply to other common carriers. Accordingly, the principles of law involved in this case are well established. Finlayson v. Bryan (1928) 56 ND 407, 217 NW 662; Durick v. Winters (1941) 70 ND 592, 596, 296 NW 744. The liability of common carriers to their passengers is not to be determined solely by the principles which control in defining their liability to third persons who are not passengers, because the carrier owes to the passenger an additional duty of carrying her safely to the point of her destination. “Many cases recognize a distinct doctrine as applicable to carriers of passengers, holding or recognizing that carriers are liable for the wrongful acts of their agents or servants which result in-injuries to passengers, whether or not willful and malicious or willful and wanton, and whether or not done in the line of their employment or service, or within the scope of their employment or- authority, if done during the course of the dis *41 charge of the duty which their employers owe to passengers, or in the course of carrying out the contract of carriage, . . . 13 CJS, Carriers, sec 689, page 1275; 10 CJ 888. “The liability of a common carrier for injuries to passengers occasioned by the wrongful, wilful, or malicious conduct of its servants has been quite frequently based entirely upon the legal obligation imposed upon the carrier to protect its patrons while in its charge from wilful or negligent injury. Accordingly, it is of no consequence when the wrong is committed by the carrier’s own servant that the act bears no connection or rélation with the duties of such servant to the carrier and is not committed as an incident to the discharge of any duty, but is entirely outside the scope of his employment. The carrier is liable in such cases because the act is violative of the duty it owes through the servant to the passenger, and not because the act is within the scope of the employee’s work.” 10 Am Jur, Carriers, sec 1123 and see secs 1122, 1238, 1239 and 1448; 35 Am Jur Master and Servant, sec 581. Concerning the duties of a carrier of persons RC 1943, sec 8-0205 reads: “A carrier of persons for reward must give to passengers all such accommodations as are usual and reasonable, and must treat them with civility and give them a reasonable degree of attention.” Such statute, 8-0205, is merely declaratory of the common law, and being in affirmance of the common law is to be construed as the rule by that law. The common law rule is stated in volume II Wait’s Actions and Defenses, 1877 edition, pages 75 and 76, thus: “The carrier’s obligation is not only to carry his passenger safely and properly, but also, to treat him respectfully. He must not only protect him against the violence and insults of strangers and co-passengers, but a- fortiori, against the violence and insults of his own servants. And if this duty is not performed, but on the contrary, the passenger is assaulted and insulted, through the negligence or the willful misconduct of the carrier’s servant, the carrier is necessarily responsible. Thus, a passenger who is assaulted and grossly insulted in a railway car by a brakeman employed on the train, has a remedy therefor against the company.” *42 In New Jersey Steamboat Co. v. Brockett (1887) 121 US 637, 30 L ed 1049, it was held that a common carrier of passengers undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract. “It is the duty of the driver of a public taxicab to treat passengers respectfully, and the owner of a taxicab and the employer of its driver must respond in damages to a passenger for an unwarranted assault by the driver, committed in the course of the transportation.” 37 Am Jur, Motor Transportation, sec 155. In Barbknecht v. Great Northern R. Co. (1927) 55 ND 104, 212 NW 776, it was held that a female passenger traveling by railroad on a ticket contract is entitled to protection against the misconduct and insults of an employee of the railroad; that where a train porter, while on duty, applies opprobrious epithets and insulting language to such passenger, the carrier is responsible in damages for such misconduct. See 13 CJS, Carriers, sec 692 n 56 (1). Furthermore, a railroad company has been held liable where a rape on a passenger was committed by a brakeman. Garvik v. Burlington (1906) 131 Iowa 415, 108 NW 327, 117 Am St Rep 432, 13 CJS, Carriers, sec 692 n 58(2). Likewise, a taxicab carrier has been held liable where the driver of its taxicab committed rape on a female passenger. Korner v. Cosgrove, supra; Co-op Cab Co., Inc. v. Singleton, supra; 13 CJS, Carriers, sec 692, n 58(3). Obviously, an unprovoked assault upon a passenger is not within the scope of the cab-driver’s employment. It is an act that is violative of the duty the carrier owes through the driver. Therefore, if the plaintiff was a passenger in the defendant’s taxicab at the time she was raped by the driver of the cab, she would be entitled to recover, from defendant taxicab company for injuries to her person and reputation. Plaintiff was entitled, by virtue of the fact she was a passenger, not only to be protected against the negligent acts of the company’s cab driver resulting from the omission to perform the company’s duties to its passengers, but, a fortiori, she was likewise entitled to be protected against the unwarranted assault committed on her *43 person by the cab-driver during the continuance of the carrier-passenger relationship. We now come to the question of the extent of the common carrier’s liability for an assault by one passenger on another. A carrier is not an insurer of the safety of its passengers as against the consequences of acts of third persons not in its employ. 10 Am Jur, Carriers, sec 1243. However, a carrier is under the duty to use due care to protect its passengers from the torts or misconduct of third persons, including fellow passengers. 13 CJS, Carriers, secs 695, 696; 10 Am Jur, Carriers, secs 1439 and 1109. The degree of care required is stated in RC 1943, sec 8-0202: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” The rule is stated in Finlayson v. Bryan, supra (1928) 56 ND 407, 217 NW 662, syllabus 2, thus: “A common carrier of passengers for hire is required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight for the safety of its passengers, in view of the mode and character of the conveyance adopted, and consistent with the practical operation of its business.” The foregoing is quoted in Durick v. Winters, supra (1941) 70 ND 592, 596, 296 NW 744. The basis of the carrier’s liability for the tort of a third person is not such tort itself, but rather the negligent omission of the carrier, through its employees, to prevent such tort. 10 Am Jur, Carriers, sec 1454; 13 CJS, Carriers, sec 695 at pages 1295 and 1297; and sec 696 at page 1304. See 15 ALR 868; 42 ALR 168; 45 ALR 303. Inasmuch as the plaintiff: in this case was raped by both the cab driver (Pape) and the third person, a passenger (Powell),'and because of the undisputed evidence of the willful connivance with and assistance by the driver in the rape by .the fellow passenger (Powell), it will be unnecessary to consider further the subject of what degree of care the carrier is under duty to use for the protection of its passengers against injuries *44 from fellow passengers and other third persons. 10 Am Jur, Carriers, sec 1456. The controlling issue in this case is whether the plaintiff was a passenger. From the evidence, the jury could have found the following facts. The certificate of authority of defendant cab company authorized it to send its taxicab to Woodworth. It owned and .operated the taxicab which transported the plaintiff, and it employed the cab-driver who invited 'her to become a passenger. After the cab-driver had invited plaintiff to become a passenger, she relied upon that invitation in good faith. The plaintiff became a passenger under these circumstances. See Stevens v. Yellow Cab Co. (La App 1932) 142 So 807. . The fact that plaintiff did not pay taxi fare did not prevent the establishment of the carrier-passenger relationship, inasmuch as it is not essential that .the'fare should be tendered or paid in advance. 13 CJS, Carriers, sec 557. The driver represented to plaintiff that her parents had hired the taxicab to bring her home. If such representation had been true it would be understood that the fare would be paid either by plaintiff or her parents upon arrival at her destination.. Then too, the fare would not be computed until, the transportation was complete. We conclude, from an examination of the whole record,, that it was prejudicial error to direct a verdict in favor of the defendant cab company. The judgment is reversed and a new trial granted. Burke and Morris, JJ., concur. Nuessle, C. J., concurs in the result. Gronna, District Judge, sitting in place of Burr, J.