Connell v. Clark

This appeal is from a judgment awarding plaintiff damages for an assault and battery which he suffered

As grounds for reversal defendants contend (1) that the complaint fails to state a cause of action; (2) that the evidence is insufficient to support the verdict; (3) that certain of the jury instructions were prejudicially erroneous; defendant Colonial Insurance Company asserts an additional defense in its behalf that it is not liable by reason of the limitations in its insurance policy.

1. The Complaint. Defendants maintain that the complaint fails to state a cause of action for assault and battery because it does not allege (1) that defendants had any direct connection with the assault by the taxi driver and the sailor, (2) that the taxi driver or the sailor committed the assault as agents, servants or employees of defendant Clark or (3) that the driver was at all times mentioned in the complaint acting within the scope or course of his employment.

There is no merit in defendants’ contentions. It is admitted that at the time of the occurrence involved in this action defendant Henry Clark was a licensed taxicab operator and was the owner of and doing business as the Garden Cab Company. The complaint alleges that plaintiff telephoned the place of business of the Garden Cab Company and ordered a cab; that the man who answered the telephone said a cab would be sent; that a few minutes thereafter a cab bearing the words “Garden Cab Company” arrived at the place to which the cab had been ordered; that plaintiff entered the cab and ordered the driver to take him to plaintiff’s residence; that plaintiff was accepted as a passenger for hire by the driver acting within the course and scope of his employment as the agent, servant or employee of defendant Clark; that while riding as a passenger for hire and during the course of the ride plaintiff was assaulted and beaten by the driver and a sailor who accompanied the driver and that plaintiff suffered damages.

It is not essential that plaintiff allege that defendants had any direct connection with the assault or that the driver and the sailor committed the assault as agents of defendants. If the assault takes place in the course of the agent’s employment, the principal is liable (Carr v. Wm. C. Crowell Co., 28 Cal.2d 652 , 654-5 [ 171 P.2d 5 ]; Hiroshima v. Pacific Gas & Elec. Co., 18 Cal.App.2d 24 , 31-32 [ 63 P.2d 340 ]) and it is immaterial whether the assault was authorized by the

The allegation that plaintiff was accepted as a passenger for hire by the driver acting within the course and scope of his employment as the agent, servant or employee of the defendant Clark is sufficient without alleging that at the time of the injuries the driver and the sailor were acting for defendant Clark, the taxi owner.

The complaint also sufficiently states a cause of action against defendant Colonial Insurance Company since it alleges that the policy of insurance issued by the company and insuring defendant Clark against loss or damage was issued pursuant to the provisions of an ordinance of the county of Los Angeles which provides in part that “The undertaking required before a taxicab operator’s license can be issued shall" be conditioned that the taxicab operator shall pay all damages to person or property, for the payment of which he may become liable arising out of the conduct of the business of taxicab operator, and that any person having such a cause of action against the principal may join the surety as a party defendant or in his own name sue separately the surety on such undertaking.” An insurance carrier may be joined as a party defendant whenever the policy itself, or the municipal ordinance in compliance with which it is issued, provides that the policy shall inure to the benefit of the public. (Grier v. Ferrant, 62 Cal.App.2d 306 , 314 [ 144 P.2d 631 ]; Milliron v. Dittman, 180 Cal. 443 , 445, 446 [ 181 P. 779 ].)

2. Sufficiency of the Evidence. Defendants contend that the evidence is insufficient to support the verdict; that there was no substantial evidence to identify the assailants or to establish that those who beat plaintiff were acting in the course of employment by defendants; that there was no identification by plaintiff of the cab driver except by his voice.

Plaintiff testified that in the evening on which the alleged assault' occurred he called at Eurick’s service station, which is located at the corner of Eagle and Atlantic Boulevards in Montebello, in connection with repairs on his car; that about 8:15 p.m. he called the Garden Cab Company from a public telephone in the service station and requested a cab; that the first words spoken by the person answering the

Rex McCormick, the dispatcher for the Garden Cab-Company, in response to a question whether he received a call from any area at or near Atlantic and Eagle Boulevards, testified he received a call from Roberts Ranch Market at about 8 or 8 :15 on the night in question; that he gave the call slip to driver Milton Bryant, who about 20 minutes later returned the slip and stated he could not pick up the person at Roberts Market because he did not have room for him; that he did not give the call to any other driver.

Bryant testified that he was on duty on that night from' 6 p. m. to 6 a. m. the following day; that he had a pickup ticket for Roberts Market but that he had a full load and therefore drove back to the office and handed the ticket to the dispatcher and told him he had a load and could not make the pickup at Roberts Market. Bryant further testified that he never had a friend, a sailor, riding with him; that Roberts Market is about half a block from Eurick’s; that he did not pick up or have a man in his car between 8 and 8 :30

The evidence, while conflicting, is sufficient to support the verdict. The jury having chosen to believe the evidence of plaintiff and his witnesses and to disbelieve that of defendants and their witnesses, their determination will not be disturbed on appeal. Where there is a conflict in the evidence the verdict cannot be disturbed as being contrary to the evidence. (Caraveo v. Pickwick Stages System, 113 Cal.App. 443 , 448 [ 298 P. 516 ] ; Harrington v. Freddi, 133 Cal.App. 96 , 98 [ 23 P.2d 525 ].)

With respect to the identification of Bryant as the driver of the cab being solely by his voice, the law regards the sense of hearing as reliable as that of any other of the five senses. (Bowlin v. Commonwealth, 195 Ky. 600 [ 242 S.W. 604 , 607].) It is universally recognized that the voice, as well as the physical appearance of a person, is a means by which identification is made possible, there being no more similarity in the voices of different people than there is in their physical appearance. A definite impression of the one is made upon the mind through the medium of the sense of hearing, while the impression of the other is made on the mind through the sense of sight. Therefore testimony relating to the identity of the voice is competent, its probative value being a question of fact for the jury. (Bland v. State, 129 Tex.Cr. 553 [ 89 S.W.2d 996 , 997].) Voice is a competent means of identification and a person may be identified by such means alone. (State v. Karas, 43 Utah 506 [ 136 P. 788 ,790].)

3. Alleged Errors in Instructions. Defendants maintain that the following instructions were erroneous: (1) “It is established that Milton Bryant, who was operating the cab, involved in the accident in question, was acting as agent for the defendant Henry Clark, and within the scope of his authority, at the time of the events out of which the incident occurred. Therefore, the acts and omissions of that agent were, in contemplation of law, the acts and omissions, respectively, of his principal, the defendant Henry Clark.” (2) “You are therefore instructed that if you find the facts to be that the defendant, Henry Clark, doing business as Garden Cab Company and receiving calls for cabs at the

The first instruction was erroneous and prejudicial since, by instructing the jury that it was established that Bryant was operating the cab in question, the court withdrew the issue of agency from the jury and this was one of the questions which they were required to decide. Plaintiff maintains that the instruction was consistent with the undisputed testimony that Bryant was employed as a cab driver by defendant Clark on the night in question and that he worked from 6 p. m. until 6 a. m. the following day as a cab driver in one of the cabs of defendant Clark. However, the evidence is in conflict as to whether Bryant operated the cab in which plaintiff was a passenger. Bryant denied he was operating the cab, denied he had ever carried plaintiff as a passenger, denied he had a sailor riding with him and denied he had assaulted plaintiff. Whether Bryant (1) was the driver of the cab involved in the incident which is the subject of this action, (2) was acting as agent for the defendant Clark and (3) within the scope of his employment were questions for the jury to decide. The instruction (1) that it was established that Bryant was operating the cab, (2) that he was acting as agent for defendant Henry Clark and (3) within the scope of his authority at the time of the events out of which the incident occurred took those issues from their consideration. Instructions which assume facts that are controverted in the case constitute reversible error. (Scandalis v. Jenny, 132 Cal.App. 307 , 314 [ 22 P.2d 545 ]; Cahoon v. Marshall, 25 Cal. 197 , 202.) Instructions that assume as facts matters which are in issue and as to which there is a conflict in evidence are erroneous. (Gibson v. Kennedy Extension Gold Mining Co., 172 Cal. 294 , 304 [ 156 P. 56 ]; Clarke v. Volpa Brothers, 51 Cal.App.2d 173 , 179 [ 124 P.2d 377 ].)

The instructions (A), (B) and (C) do not cure the error. While, as contended by plaintiff, instructions must be considered in their entirety, each in connection with all the others (Shapiro v. Equitable Life Assur. Soc., 76 Cal.App.2d 75 , 95, 96 [ 172 P.2d 725 ]), instructions (A) and (B) are in direct conflict with instruction (1). If the jury followed the one they could not then follow the other.

Defendants contend that the second instruction objected to is wholly misleading and they particularly complain of the closing sentence which in effect tells the jury that if one defendant is liable, both defendants are liable. The instruction is not misleading insofar as defendant Clark is concerned when read with those immediately preceding it, to which there is no objection on the part of defendants, since in those instructions the court instructed the jury on the law of ostensible agency and the liability of a principal for the wrongful acts of an ostensible agent. However, since defend

4. Liability of defendant Colonial Insurance Company. Defendant insurance company contends that even though it be determined that defendant Clark is liable, it is free from liability both under the ordinance pursuant to which its policy was issued and under the policy itself which, it maintains, is limited. In view of the fact that this case will no doubt be retried, it is proper that this issue be decided.

Section 121 of the ordinance in question reads as follows: “The policy of insurance required before a taxicab operator’s license can be issued shall insure the public against any loss or damage that may result to any person or property from the operation of any taxicab used by the taxicab operator in his business as such . . .” The provisions of the ordinance become a part of the insurance policy to the same extent as though the ordinance were incorporated in the policy. (Malachowski v. Tarro, 76 Cal.App. 207 , 213 [ 244 P. 936 ].) The contention of the insurance company that the ordinance has reference only to injuries resulting from traffic accidents is fallacious. While it may be true that the most common loss or damage resulting from the operation of a taxicab is that occasioned by traffic accidents, the ordinance specifically requires insurance against any loss or damage that may result from the operation of any taxicab. That the damage in question resulted from the operation of a taxicab is too patent to be susceptible to argument. Plaintiff was a passenger for hire and did not cease to be one when he was dragged out of the cab by the driver.

The insurance company maintains that its policy is limited to negligent and accidental injuries and that injuries which are incurred after the passenger has alighted as well as injuries caused by riots are specifically excluded. Since the evidence shows that the only reason plaintiff had alighted was because the driver had forcibly taken him out of the cab, and this obviously for the convenience of the driver, this contention is not worthy of serious consideration.

The theory advanced by defendant insurance company that the assault and battery by the joint actions of the driver and the sailor constituted a riot is both novel and quixotic. It is not persuasive. The insurance company con

Judgment reversed.

Moore, P. J., and McComb, J., concurred.