{ "id": 1656547, "name": "Black & White Cab Company v. Doville", "name_abbreviation": "Black & White Cab Co. v. Doville", "decision_date": "1952-10-27", "docket_number": "4-9865", "first_page": "66", "last_page": "73", "citations": [ { "type": "official", "cite": "221 Ark. 66" }, { "type": "parallel", "cite": "251 S.W.2d 1005" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "207 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481750 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0070-01" ] }, { "cite": "95 S. W. 2d 1136", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 1059", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1414965 ], "opinion_index": 0, "case_paths": [ "/ark/192/1059-01" ] }, { "cite": "46 S. W. 2d 17", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 47", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435101 ], "opinion_index": 0, "case_paths": [ "/ark/185/0047-01" ] }, { "cite": "118 S. W. 258", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "90 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513870 ], "opinion_index": 0, "case_paths": [ "/ark/90/0117-01" ] }, { "cite": "116 S. W. 224", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "89 Ark. 261", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515275 ], "opinion_index": 0, "case_paths": [ "/ark/89/0261-01" ] }, { "cite": "95 S. W. 771", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "78 Ark. 331", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497322 ], "opinion_index": 0, "case_paths": [ "/ark/78/0331-01" ] }, { "cite": "91 S. W. 18", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "77 Ark. 109", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499119 ], "opinion_index": 0, "case_paths": [ "/ark/77/0109-01" ] }, { "cite": "66 S. W. 661", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "70 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509490 ], "opinion_index": 0, "case_paths": [ "/ark/70/0136-01" ] }, { "cite": "53 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911622 ], "opinion_index": 0, "case_paths": [ "/ark/53/0007-01" ] }, { "cite": "119 S. W. 835", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "90 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513839 ], "opinion_index": 0, "case_paths": [ "/ark/90/0462-01" ] }, { "cite": "80 S. W. 2d 921", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "190 Ark. 470", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1421838 ], "opinion_index": 0, "case_paths": [ "/ark/190/0470-01" ] }, { "cite": "32 L. R. A., N. S. 525", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "133 S. W. 168", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "97 Ark. 24", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318776 ], "opinion_index": 0, "case_paths": [ "/ark/97/0024-01" ] }, { "cite": "163 S. W. 525", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "111 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540426 ], "opinion_index": 0, "case_paths": [ "/ark/111/0288-01" ] }, { "cite": "205 Ark. 953", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488248 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/205/0953-01" ] }, { "cite": "26 S. W. 2d 1108", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "181 Ark. 649", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724251 ], "opinion_index": 0, "case_paths": [ "/ark/181/0649-01" ] }, { "cite": "272 S. W. 856", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "168 Ark. 1028", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726466 ], "opinion_index": 0, "case_paths": [ "/ark/168/1028-01" ] }, { "cite": "146 S. W. 855", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "103 Ark. 538", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351984 ], "opinion_index": 0, "case_paths": [ "/ark/103/0538-01" ] }, { "cite": "4 S. W. 2d 25", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "176 Ark. 666", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1399866 ], "opinion_index": 0, "case_paths": [ "/ark/176/0666-01" ] } ], "analysis": { "cardinality": 743, "char_count": 14377, "ocr_confidence": 0.498, "pagerank": { "raw": 1.5970900705823025e-07, "percentile": 0.6832187899757862 }, "sha256": "496d1caa234a13c3fbe1fc3e87c992f13859bc37340345a8e962969bffb9589e", "simhash": "1:34358fa73e687b90", "word_count": 2530 }, "last_updated": "2023-07-14T17:46:24.085624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Black & White Cab Company v. Doville." ], "opinions": [ { "text": "Ed. F. McFaddin, Justice.\nThis appeal involves the liability of a taxicab company for allowing an assault on a passenger.\nAppellant, Black & White Cab Company, (hereinafter called \u201cCab Company\u201d) is a corporation engaged in the taxicab business in Fort Smith. Appellee, Paul Doville, filed action against'the Cah Company for actual and punitive damages which he alleged were sustained by him when he was assaulted and beaten while a passenger in a taxicab of the Cab Company. Liability was predicated not only on the failure of the driver of the taxicab to render the required degree of care to Doville, but also on the willful and wanton conduct of the driver. The Cab Company denied all liability, and trial to a jury resulted in a verdict for $500 actual damages and $500 punitive damages. The Cab Company brings this appeal and presents the points now to be discussed.\nI. Motion for Instructed Verdict. At the close o.f the plaintiff\u2019s case, and again at the conclusion of all the evidence, the Cab Company moved for an instructed verdict. The refusal of such motion is assigned as error, so we review the evidence supporting the verdict.\nAppellee Doville telephoned the Cab Company requesting a cab to be sent to his address; and in due time, the cab arrived. The driver was Jack Faught, and on the front seat with him were Granville Stewart and Robert Early. On the back seat of the cab were Gene Hettle and Thomas Monroe. Doville was seated,on the back seat immediately behind Early. When Doville said he wanted to be taken to.tbe main post office downtown, Early, wbo had been drinking, said: \u201cNo, you want to go with us; we are going to Alma.\u201d Doville reiterated bis desired destination and then Early turned around, grabbed Doville by tbe necktie, pulled him forward, and bit bim in tbe face and mouth and on tbe shoulders and neck. Doville was bleeding and dazed. When tbe cab stopped to discharge Settle, Doville tried to get out, but Early and tbe other man on tbe front seat seized Doville and pulled bim back in tbe cab, and Early continued to beat bim over tbe bead. The taxicab driver did not protest, call tbe police, or do anything to discourage tbe assault or to protect Doville.\nWhen tbe cab was still some distance from Doville\u2019s desired destination, Early told tbe driver: \u201cLet\u2019s put bim out here\u201d. Accordingly, Doville was allowed to leave tbe cab, and be immediately called tbe police and gave a report of tbe assault. Doville insisted that be said nothing to anyone in tbe cab except to announce bis desired destination. Se testified as to bis injuries, loss of time, clothing, etc.; but since the amount of tbe verdict for actual damages is not questioned, we forego these details.\nDoville was corroborated as to tbe assault and battery by Gene Settle, a young boy wbo was a passenger in tbe cab, and wbo also testified that tbe cab driver and Early each took one or two drinks of whiskey while Settle was in tbe cab. Doville was also corroborated by Mr. Monroe, wbo was seated with bim in tbe taxicab. Monroe testified that tbe driver of tbe taxicab did nothing to stop tbe assault on Doville and uttered no protest as to tbe assault. Monroe also testified that Early pulled Doville back in tbe cab when tbe Settle* boy got out and that Doville also tried unsuccessfully to get out of tbe cab when Monroe left.\nIt is true that Early and Stewart, testifying for tbe cab company, gave their version of tbe affair;' and each claimed that Doville provoked tbe attack, but tbe facts heretofore stated clearly made a case for tbe jury, and the Circuit Court was correct in refusing the Cab Company\u2019s motion for an instructed verdict.\nII. Motion for Continuance. Jack Faught was the driver of the taxicab at the time of the attack on Doville; the Cab Company sought to obtain a continuance on account of Faught\u2019s absence at the time of the trial; but the continuance was refused. The Court was correct in so ruling. Mr. Staton, president of the Cab Company, said that Faught left Fort Smith the next day after the assault; that Staton had been unable to locate Faught, but thought he was working in Oklahoma City. Thus there was no showing whatsoever that Faught would be present at any later trial. The granting of a continuance is within the sound discretion of the trial court; and it is not an abuse of discretion to refuse to continue a cause on account of the absence of a witness when there appears no reasonable assurance of finding the witness. See Old American Co. v. Hartsell, 176 Ark. 666, 4 S. W. 2d 25; Newhouse Mill & Lumber Co. v. Keller, 103 Ark. 538, 146 S. W. 855. See also West\u2019s Ark. Digest \u201cContinuance, \u201d \u00a7 22.\nIII. Admission of Evidence. Over the objection of the Cab Company, the Court permitted testimony to the effect that about thirty minutes after the attack on Do-ville, the same Jack Faught, Granville Stewart and Robert Earhy (who occupied the front\u2019 seat of the taxicab when Doville was attacked) were together at El Charro, a drive-in place in Fort Smith; that Robert Early there assaulted Mr. Carl Patterson arid knocked him down without any provocation; and that shortly after the Patterson assault, the police apprehended Early, Stewart and Faught. In admitting this evidence, part of which was testified to by Stewart on cross-examination, the trial court said:\n\u201cLadies and gentlemen of the jury, I now instruct you that you may consider any event that may have taken place at the El Charro as this witness testified about, you cannot use it as substantive proof in this case. It only goes to show a common design or intent and you are to only consider it for that purpose and for no other purpose.\u201d\n' We hold that the trial court was correct in the ruling. The three men, Stewart, Faught and Early, had been together when Doville was beaten in the taxicab. It was shown that the cab was equipped with a two-way radio to the office of the Cab Company, and that Faught never reported to the office anything about the attack on Doville. Instead, Faught continued to ride around with Early and Stewart, one of whom had assaulted his passenger, and the other of whom had grabbed the passenger and helped pull him back in the ear. Instead of trying to protect his passenger as the law required, Faught continued to consort with those who had participated in the attack. Faught and Early had been drinking together while in the taxicab, and this evidence of continued association was of some force as to Faught\u2019s common design with Early and Stewart. This evidence was also of value on Faught\u2019s willfulness or wantonness, which was one of the essentials for punitive damages.\nIt has long been the rule that other transactions may be shown as tending to indicate a general plan or motive, if such other transactions are of the same nature as the one in question and reasonably close in time to the one in issue. Myers v. Martin, 168 Ark. 1028, 272 S. W. 856; McCaskey Register Co. v. McCurry, 181 Ark. 649, 26 S. W. 2d 1108.\nIV. Instruction as to Actual Damages. In Instruction No. 3', the Court told the jury:\n\u201cYou are instructed that a common carrier owes a duty to protect its passengers from assaults from third party passengers; and so in this case if you believe and find from the evidence that the conduct of the passenger, Robert Early, mentioned in evidence, by whom the plaintiff claims to have been assaulted and battered at said time and place as alleged in his complaint, while a passenger in a cab of the defendant, Black & \"White Cab Company, and prior to the happening of the assault and battery, the conduct of the said Robert Early was such as would induce a reasonably vigilant and prudent cab driver by tbe exercise of ordinary care to have anticipated that said passenger was likely to assault and batter plaintiff, then it would become tbe duty of tbe defendant, its driver, agent, servant, and employee in tbe exercise of a bigb degree of care to use all reasonable means to 'protect tbe plaintiff from assault and battery from said passenger; and if you find and believe from the evidence that tbe defendant, its driver, agent, servant and employee, failed to use a bigb degree of care to prevent such assault and battery upon tbe plaintiff; and if you so find that said passenger did assault and batter tbe plaintiff; and if you find and believe from tbe evidence that tbe defendant, its driver, agent, servant and employee failed to exercise a bigb degree of care to prevent said passenger from assaulting and striking tbe plaintiff ; and if you further believe and find from tbe evidence that tbe failure, if any, of tbe defendant, its driver, agent, servant and employee, to prevent said passenger from assaulting and battering tbe plaintiff was carelessness and negligence, if any, on tbe part of the defendant, its driver, agent, servant and employee; and if you further believe and find from tbe evidence that as a result of tbe carelessness and negligence, if any, on tbe part of tbe defendant, its driver, agent, servant and employee, in failing to protect plaintiff from said passenger, and that said passenger did strike and knock down plaintiff, and that as a direct result thereof, plaintiff was injured through no fault of bis own, then tbe plaintiff is entitled to recover and your verdict must be for tbe plaintiff for actual damages, if any.\u201d\nTbe Cab Company objected to this Instruction, and claimed: \u201cSaid Instruction places a higher degree of care on tbe defendant than that required by law\u201d. In National Fire Ins. Co. v. Yellow Gab Co., 205 Ark. 953, 171 S. W. 2d 927, we said: \u201cTbe weight of authority is to tbe effect that the standards of care which prevail as to common carriers, generally, apply to those engaging in tbe business of operating taxicabs. 4 Blashfield, Automobile Law, \u00a7 2201, p. 46.\u201d See, also, 37 Am. Jur. 598.\nWe have many cases in our reports stating the degree of care which a carrier owes to a passenger to attempt to protect him from an assault by another passenger. Some of these cases are: Chicago Ry. Co. v. Brown, 111 Ark. 288, 163 S. W. 525; Mayfield v. St. Louis R. Co., 97 Ark. 24, 133 S. W. 168, 32 L. R. A., N. S. 525; Ark. Power & Light Co. v. Steinheil, 190 Ark. 470, 80 S. W. 2d 921. Also reference books state the rule of law in such cases. See 4 R. C. L. 1181,10 Am. Jur. 266,13 C. J. S. 1255 and 13 C. J. S. 1294.\nIn our case of Arkansas Power & Light Co. v. Steinheil, supra, Mr. Justice Prank Gr. Smith said:\n\u201c. . . a carrier owes to its passengers the duty of protection from the violence and insults of other passengers or strangers so far as this can be done by the exercise of a high degree of care, and will be held responsible for its own or its servants\u2019 negligence, in this particular, when, by the exercise of proper care, the act of violence might have been foreseen and prevented.\u201d\nTested by our own cases and the law generally, we find no error in the Instruction No. 3 as against the objection made by the Cab Company.\nY. The Instruction on Punitive Damages. In Instruction No. 4 the Court told the jury that if the driver of the Cab Company failed to exercise the required degree of care in protecting Doville, and if \u201cthe said driver\u2019s actions constituted a conscious indifference and a willful disregard of the rights of Paul Doville as a passenger in the defendant\u2019s taxicab, then you may in addition to plaintiff\u2019s actual damages assess punitive damages against the defendant. You are instructed that punitive damages are defined as those damages imposed by the way of punishment and are such that are awarded for that purpose in addition to compensation for the actual loss sustained.\u201d\nThe Cab Company claimed that the Instruction was in error, because it \u201cdoes not correctly state the elements of punitive damages, but picks out only \u2018 conscious indifference and willful disregard\u2019 leaving out the other essential elements necessary to fully advise the jury upon what grounds the award could be made, the rule being that exemplary damages are recoverable only for willfullness, wantonness or conscious indifference to consequences from which malice will be inferred . . .\u201d\n\u25a0 The right of a passenger to recover punitive or exemplary damages has heretofore been before this Court. In Chicago Ry. Co. v. Whitten, 90 Ark. 462, 119 S. W. 835, Mr. Justice Fratjenthal gave this statement of our holdings :\n\u201cBut exemplary damages will not be allowed on account of an injury growing out of a mistake, or ignorance, or negligence, no matter how gross the negligence may be. The rule relative to the right of recovery of exemplary damages from a common carrier for a wrongful or negligent violation of its obligations and duties to a passenger has been formulated by this court in the following language: \u2018Negligence, however gross, will not justify a verdict for exemplary damages unless the negligent party is guilty of wilfulness, wantonness, or conscious indifference to consequences, from which malice will be inferred.\u2019 Railway v. Hall, 53 Ark. 7; St. Louis, 1. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, 66 S. W. 661; Arkansas & La. Ry. Co. v. Stroude, 77 Ark. 109, 91 S. W. 18; Choctaw, O. & G. Rd. Co. v. Cantwell, 78 Ark. 331, 95 S. W. 771; St. Louis, I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S. W. 224; Greer v. White, 90 Ark. 117, 118 S. W. 258.\u201d See, also, 10 Am. Jur. 420, et seq.\nIt is clear that if the driver of the taxicab was guilty of willfulness, wantonness or conscious indifference to consequences, then malice might be inferred from such acts. The Instruction No. 4 said: \u201ca conscious indifference and a willful disregard\u201d. It was, therefore, more favorable to the Cab Company than the law required and was not open to the objection made.\nThe judgment is affirmed.\nThe rule is well settled that in determining the correctness of the trial court\u2019s decision in refusing to direct a verdict for defendant, the 'evidence is viewed in the light .most favorable to the plaintiff. Mo. Pac. Ry. v. Harville, 185 Ark. 47, 46 S. W. 2d 17; Safeway Stores v. Mosely, 192 Ark. 1059, 95 S. W. 2d 1136; Acco Transport v. Smith, 207 Ark. 70, 178 S. W. 2d 1011; and other cases collected in West\u2019s Ark. Digest \u201cAppeal & Error,\u201d \u00a7 927 (7).", "type": "majority", "author": "Ed. F. McFaddin, Justice." } ], "attorneys": [ "Hugh M. Bland, for appellant.", "Gutensohn & Bagon and Lyman Mikel, for appellee." ], "corrections": "", "head_matter": "Black & White Cab Company v. Doville.\n4-9865\n251 S. W. 2d 1005\nOpinion delivered October 27, 1952.\nHugh M. Bland, for appellant.\nGutensohn & Bagon and Lyman Mikel, for appellee." }, "file_name": "0066-01", "first_page_order": 90, "last_page_order": 97 }