Bergenthal v. Boynton Automobile Livery Co.

Rosenberry, J. It is first contended on behalf of the appellants that the State Garage & Trucking Company was negligent as a matter of law in leaving the truck at the place and time in question upon the public streets of Milwaukee. This contention raises the question of whether or not the truck was sufficiently lighted or whether or not the defend — 46 — ant State Garage & Trucking Company was in the exercise of ordinary care in leaving it at the place in question. Both of these contentions were found against tire appellants by the jury and that finding has received the approval of the trial court. There, is a substantial conflict in the evidence as to the- manner in which the truck was lighted and a finding by the jury either way could not be disturbed. As to whether or not it was negligence for the State Garage & Trucking Company to leave its truck in the street at the time and place in question was a matter peculiarly within the province of the jury. Certainly it could not be said, if, as the jury found, it was sufficiently lighted, to be negligence as a matter of law. The evidence.upon these points was voluminous and we shall not attempt to restate it. Within well established rules a jury issue was presented, and the finding of the jury upon these questions is conclusive. it is next argued that the court erred in refusing to grant the motion of the defendant Boynton Automobile Livery Company for a directed verdict as to it and in denying the motion for judgment notwithstanding the verdict. The facts upon which this contention is based are undisputed and are substantially as follows: The cab in which the parties were riding at the time the accident happened was owned and operated by the Green Cab Company and the driver of the cab was then in the employ of and paid by that company. As appears from the statement of facts, the plaintiff gave one of his companions, Mr. White, a . telephone number and requested Mr. White to call a taxicab. Whether the plaintiff requested White to call the Boynton Automobile Livery Company or not is immaterial, because it is undisputed that when Mr. White did call the number which was given him he did not disclose his identity or state that he was calling the cab on behalf of Mr. Ber-genthal or inquire whether or not the response came' from the Boynton Automobile Livery Company. — 47 — It appears that before the advent of the automobile Mr. Boynton, predecessor of the present owners, conducted a very widely and favorably known livery business in the city of Milwaukee; that that business was succeeded by the Boynton Automobile Livery Company, which furnishes limousines and touring cars, but does not and has not engaged in the cab business. Some time after the organization of the Boynton Automobile Livery Company, which was organized for the purpose of conserving the good will of the Boynton livery business, the stockholders of the Boynton Automobile Livery Company decided to engage in the cab business, and for that purpose a separate corporation known as the Green Cab Company was organized. It has the same stockholders and officers, and the same persons constitute the board of directors of both companies. Both companies occupy the same office and each occupies a part of the same building, and the persons who are employed as office men and bookkeepers perform a like service for both companies. It further appears that each company hires and pays its own drivers and that each company pays its own rent. They have a common telephone — Broadway 22. It further appears that the Green Cab Company does no credit business excepting in a few instances where, in order to accommodate old customers, credit is extended. The accounts of such customers are kept by the Boynton Automobile Livery Company and the bills rendered by it, and for that service the Green Cab Company pays it ten cents per item. It further appears that in connection with the corporate name the word “Boynton’s” is printed on the side of the taxicabs which are owned by the Green Cab Company. It does not appear upon what ground the court denied the motions, but it is argued here that the judgment be sustained upon two grounds: (1st) because the Livery Company owed the plaintiff a duty to provide a safe taxicab and a careful driver; and (2d) because the Boynton Automo — 48 — bile Livery Company is estopped from denying that it provided the taxicab and driver. There can be no question but that if the defendant Boynton Automobile Livery Company undertook to provide a taxicab for the plaintiff at the time and place in question, it was its duty to provide a safe taxicab and a careful driver. However, we are pointed to no evidence in the record and we find none which shows that the Boynton Automobile Livery Company undertook to provide a cab for the plaintiff at the time and place in question. The telephone operator who responded to the call made by Mr. White at the request of the plaintiff was just as much an employee of the Green Cab Company as of the Boynton Automobile Livery Company. The person making the call did not inquire whose employee or agent the operator was, but simply requested that a cab be sent to Riedl’s café. In response to this request- the telephone operator directed the cab driver, who was then stationed at the Plankinton Hotel, to proceed across the river and respond to the call. How or in what respect this makes the Boynton Automobile Livery Company liable we are unable to see. The principal elements of estoppel are also entirely wanting. If Mr. White, when a response was made to the telephone call, had asked if that .was the Boynton Automobile Livery Company, and, upon being assured that it was, had then requested that the Boynton Automobile Livery Company send a cab, a different situation would be presented. It is very doubtful at least whether under such circumstances the Livery Company would be liable if it exercised proper care in the selection of a cab and driver. Certainly no element of estoppel could arise relating to the manner in which the business had theretofore been conducted unless and until the identity of the person desiring the service was disclosed and it appeared that in reliance on a prior course of business he was led by an employee to suppose that he was dealing solely with the Boynton Automobile Livery — 49 — Company; but that fact does not appear. While it does appear that Mr. Bergenthal had at prior times had the service of cabs owned by the Green Cab Company and that he paid for them on bills rendered by the Boynton Automobile Livery Company and upon those occasions supposed he was dealing with that company, such course of dealing can have no materiality here where Bergenthal’s identity was not disclosed and therefore the Boynton Automobile Livery Company could not know it was dealing with one with whom it had had previous dealings. The evidence clearly shows that in this instance neither the plaintiff nor White relied upon a previous course of dealing. The mere fact that corporations have common officers and occupy common offices does not make the one corporation liable for the action of the other,- except upon established legal principles. The mere fact that they have officers in common and places of business in common and to a certain extent transact business for each other does not of itself make them liable each for the acts of the other. In re Watertown P. Co. 169 Fed. 252; 14 Corp. Jur. p. 58, § 19, and cases cited. Such corporations have a right to contract with each other and their contracts are valid and can only be assailed on the ground that they are unfair or fraudulent. 14A Corp. Jur. p. 125, § 9; 4 Fletcher, Corp. p. 3631, § 2376. There is in this case not the slightest intimation that there was anything unfair or fraudulent in the conduct of the. defendant corporations or that one was used as a cover for the other, for any ulterior purpose. The plaintiff never having contracted or attempted to contract with the defendant Boynton Automobile Livery Company and there being no facts out of which an estoppel can arise, we must hold that so far as the Boynton Automobile Livery Company is concerned no liability is shown. By the Court. — Upon the appeal of the Boynton Automobile Livery Company, judgment is reversed. Upon the appeal of the Green Cab Company, judgment is affirmed. — 50 — The defendants having appeared by the same counsel and having joined in the printing of the case and briefs, upon the taxation of costs the expense thereof shall be. attributable one half to each and the costs taxed accordingly.