{ "id": 5352600, "name": "Gertrude Swancutt, Defendant in Error, v. W. M. Trout Auto Livery Company, Plaintiff in Error", "name_abbreviation": "Swancutt v. W. M. Trout Auto Livery Co.", "decision_date": "1913-01-23", "docket_number": "Gen. No. 17,623", "first_page": "606", "last_page": "612", "citations": [ { "type": "official", "cite": "176 Ill. App. 606" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "242 Ill. 110", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5654586 ], "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill/242/0110-01" ] }, { "cite": "147 Ill. App. 477", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2652998 ], "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-app/147/0477-01" ] }, { "cite": "237 Ill. 88", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3387862 ], "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill/237/0088-01" ] }, { "cite": "47 Ill. 298", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5268349 ], "opinion_index": 0, "case_paths": [ "/ill/47/0298-01" ] }, { "cite": "72 Ill. 133", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2712039 ], "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill/72/0133-01" ] }, { "cite": "134 Ill. 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5438910 ], "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill/134/0481-01" ] }, { "cite": "123 Fed. 721", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3773036 ], "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/f/123/0721-01" ] }, { "cite": "127 App. Div. (N. Y.) 580", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2596928 ], "opinion_index": 0, "case_paths": [ "/ad/127/0580-01" ] }, { "cite": "177 Mass. 530", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 26371 ], "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/mass/177/0530-01" ] }, { "cite": "86 Ill. App. 38", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5268719 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill-app/86/0038-01" ] }, { "cite": "107 Ill. App. 493", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2572722 ], "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/ill-app/107/0493-01" ] } ], "analysis": { "cardinality": 626, "char_count": 12243, "ocr_confidence": 0.516, "pagerank": { "raw": 1.428638954442324e-07, "percentile": 0.6504603164122696 }, "sha256": "52f1a1ec2b6a6f68bb6a25cc7675d8ccc765d38a8f5fc40ba0909d6c7205ec00", "simhash": "1:aef8f8c8838a70cd", "word_count": 2154 }, "last_updated": "2023-07-14T15:47:28.669055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gertrude Swancutt, Defendant in Error, v. W. M. Trout Auto Livery Company, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Presiding Justice Gridley\ndelivered the opinion of the court.\nGertrude Swancutt, hereinafter called plaintiff, commenced an action of the fourth class in the Municipal Court of Chicago against W. M. Trout Auto Livery Co., a corporation, hereinafter called defendant, and Owen H. Fay Livery Co., to recover damages for personal injuries which she received, July 11, 1910, while riding in a taxicab owned by defendant, in consequence of the negligence of the driver, a servant of the defendant. The taxicab collided with a street car on Sixty-third street in the city of Chicago. Prior to the trial, which was had before a jury, the suit was dismissed as to the Owen H. Fay Livery Co. The jury found the defendant guilty and assessed plaintiff\u2019s damages at eight hundred dollars, upon which verdict the court entered the judgment which by this writ defendant seeks to reverse.\nThe following facts appeared from the evidence: The defendant was engaged in the automobile livery business and owned and operated about fifteen automobiles including said taxicab. At the time of the accident there was a strike in force by certain drivers of taxicabs, and the city authorities had granted police protection. This consisted in detailing a police .officer to accompany a taxicab during its rounds. Henry Grade, a police officer, had been detailed for this duty in connection with the taxicabs owned by defendant. On the evening of the accident, the taxicab in question left the premises of defendant, in response to a call from the Auditorium Annex, and went to that hotel, where two persons got into the cab and were driven, at their request, south on Vernon Avenue to their destination. Charles Webb, an employee of the defendant, was the driver of the taxicab and Grade accompanied him. After the two passengers had paid the driver for their ride and had dismissed the taxicab, it was driven to the \u201cWhite City,\u201d a considerable distance away, to \u201cpick up a load,\u201d and upon arriving at the \u201cWhite City\u201d awaited outside of the entrance for. a customer. Other taxicabs were also there awaiting customers. After ten o\u2019clock on that evening, plaintiff, accompanied by a friend, came out of the \u201cWhite City,\u201d and, as it was raining, sought to engage one of the several taxicabs standing at the entrance to convey plaintiff and her friend to plaintiff\u2019s home. Plaintiff testified that at the time \u201cthere were several taxicabs around the entrance but we took the first one. I inquired of the driver what the fare would be * * * and upon receiving a satisfactory answer we engaged the cab and started.\u201d The cab so engaged was the cab owned by defendant, on the front seat of which sat Webb, the driver, and Grade, the police officer. While en route to plaintiff\u2019s home and while following a moving street car on Sixty-third Street, the cab ran into the rear of the street car, and plaintiff was \u201cthrown forward on her knees\u201d and against the small seats in the front of the cab, and her right leg was cut and she was otherwise bruised and injured. Grade, the police officer, testified that at the time of the collision \u201cwe were going about ten miles an hour;\u201d that the driver \u201cdid not use the emergency brake;\u201d that \u201cthe water leaked out of the water tank;\u201d that after being informed that plaintiff had been hurt, the driver got another cab and \u201cwe carried her from the taxicab to the other cab\u2014one of us on each side helping her in;\u201d that the driver then tried to run the taxicab and found he could not steer it; that another machine towed the taxicab back to the premises of defendant, where it arrived about two o \u2019clock in the morning and that he (Grade) \u201crode back in the damaged taxicab, steering it.\u201d Plaintiff testified that she did not pay any fare either to Webb or to the driver of the cab that took her home after the accident, and that she was not asked to pay anything after the accident. Both plaintiff and a physician, who attended her at her home on the night of the accident and several times subsequently, testified to the extent of her injuries, and plaintiff testified as to loss and damage occasioned by the injuries.\nTwo witnesses testified on behalf of the defendant \u2014C. E. Hyman, night clerk of defendant, and W. M. Trout, president of defendant. The driver, Webb, did not testify. Hyman testified that the license number of the taxicab which Webb drove was 9803; that it was equipped with a meter; that Webb turned in to Hyman the sum of $3.20, which was the amount registered by the meter as being due for the trip from the Auditorium Annex; that the meter could be shut off by the driver so as to cease registering in dollars and cents but could not be so operated as to prevent its showing the mileage run; that Webb had been in the employ of defendant for about two months as a driver of taxicabs; that Hyman had instructed Webb that \u201che should not do any picking up\u2014just strictly livery,\u201d but that defendant\u2019s drivers did, however, \u201cpick up\u201d passengers on the streets while out on or returning from a trip, and that it was unusual for a driver to make any report thereon, and for the reason that the driver regarded that \u201cas his own fee.\u201d Hyman further testified that if a driver, returning from a trip on which he had been sent, should \u201cpick up\u201d another passenger and receive money from that passenger and should turn it in to him, he (Hyman) would accept it for the company, although it was \u201cagainst the rules of the company;\u201d that he (Hyman) had always done so, regardless of the rules, and that if on this particular \u201cSwancutt trip\u201d the driver, Webb, had received any money from the plaintiff and had turned that money in to him, he (Hyman) would not have refused it, but \u201cwould have taken it with a caution.\u201d The president of the defendant company, W. M. Trout, testified that the company had rules directing the actions of drivers employed by the company; that sometimes these rules were in writing and sometimes they were given orally; that the company instructed the clerks as to those rules and the clerks, in turn, instructed the drivers; that the company did a \u201chotel business\u201d and had no license authorizing its cabs to stand upon the street and solicit business on the street and did not do that kind of a business; that if a driver should so solicit he would be discharged, but that if a driver picked up a party on the street and conveyed that party as requested, and was paid, and turned over the money received to the company, the company would accept it.\nThe main contention of counsel for defendant, relied on for a reversal of the judgment, is that the defendant is not liable for the injuries sustained by plaintiff for the reason that, at the time of the accident, Webb, the driver of the taxicab in which plaintiff was riding, was not acting under the directions of defendant or in furtherance of defendant\u2019s business, but on the contrary, after having conveyed the two parties from the Auditorium Annex to their destination, had driven the cab to the \u201cWhite City\u201d for the purpose of \u201cpicking up\u201d a passenger and with the intention \u201cof making a little private money for himself.\u201d After an examination of the record in this case we cannot say that such an intention on the part of Webb affirmatively appears. Webb did not turn in any money to defendant for conveying plaintiff in the taxicab, but the testimony shows that plaintiff did not pay him any money for fare. She did not pay him anything upon entering the cab and after the accident was not asked to pay. The fact that other drivers of defendant sometimes \u201cpicked up\u201d passengers on the streets and received money which they did not pay over to defendant, does not show that Webb would not have paid to defendant the money received from plaintiff, if no accident had occurred and plaintiff had paid her fare. And the evidence tends to show that if Webb had received money from plaintiff as fare and had paid it over to defendant, the same would not have been refused by defendant. It was for the jury to say, under all the facts and circumstances of the case, whether or not Webb, at the time he committed the negligent acts complained of, which resulted in plaintiff\u2019s injuries, was acting within the scope of his employment. The jury evidently believed that he was so acting.\n\u201cIn determining.whether a master is liable for the torts of his servants the most difficult question is whether the particular act or omission of the servant, causing the injury for which the master is sought to be held liable, was committed within the scope of the servant\u2019s employment; and this question is in most cases one of fact to he determined by the jury from the surrounding facts and circumstances.\u201d 26 Cyc. 1533; Krzikowsky v. Sperring, 107 Ill. App. 493, 497; Chicago Consol. Bottling Co. v. McGinnis, 86 Ill. App. 38, 40; Perlstein v. American Express Co., 177 Mass. 530, 532; Cunningham v. Castle, 127 App. Div. (N. Y.) 580; Mattei v. Gillies, 16 Ont. Law Rep. 558, 562; Cargill v. Duffy, 123 Fed. 721, 734.\n1 \u2018 The fact that a servant, while engaged in the business of his master, deviates from the master\u2019s instructions does not of itself make the act outside of the scope of the servant\u2019s employment so as to absolve the master from liability. Likewise a particular act of a servant may be within the scope of his employment, although it violates the express instructions or orders of the master.\u201d 26 Cyc. 1535; Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 495; Keedy v. Howe, 72 Ill. 133, 136; Toledo, W. & W. R. Co. v. Harmon, 47 Ill. 298.\nIt was also for the jury to say whether the accident was caused by the negligence of Webb, the servant of defendant. \u201cThe driver of the automobile was bound to use at least reasonable and ordinary care. He was bound to anticipate that he might meet persons or vehicles and to keep a proper lookout for them and use care to have his machine under such control as to enable him to avoid collisions.\u201d Johnson v. Coey, 237 Ill. 88, 91.\nAnd we.cannot say that under all the facts in evidence the verdict of the jury was excessive.\nIt is urged that a certain portion of the oral charge given by the court to the jury, to which counsel for defendant objected at the time, was erroneous. Hpon examination of the entire charge, which was continuous and a unit, we cannot say that the giving of the portion objected to, when read in connection with the language which immediately preceded it, constituted prejudicial error. Reading the charge as a unit, we think it was substantially correct. Greenburg v. Childs & Co., 147 Ill. App. 477, 486, aff\u2019d 242 Ill. 110, 115.\nThe judgment of the Municipal Court is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Presiding Justice Gridley" } ], "attorneys": [ "Walter J. Miller, for plaintiff in error.", "J. E. Ingram, for defendant in error; H. J. Rosenberg, of counsel." ], "corrections": "", "head_matter": "Gertrude Swancutt, Defendant in Error, v. W. M. Trout Auto Livery Company, Plaintiff in Error.\nGen. No. 17,623.\n1. Automobiles\u2014when chauffeur is acting within scope of employment. Where an automobile company does a livery business only and forbids its chauffeurs to \u201cpick up\u201d and solicit passengers, and it appears that such orders are habitually disregarded and that fares from \u201cpick up\u201d passengers are retained by chauffeurs, but if fares are returned to the company they are accepted and a caution given, if a chauffeur picks up a passenger, agrees on the fare and causes an injury through negligent operation, it is for the jury to determine whether he was acting within the scope of his employment.\n2. Automobiles\u2014when negligence of chauffeur is for the jury. Where a taxicab going ten miles an hour following a moving street car runs into the car without the emergency brake being used, injuring the taxicab passenger, the question of whether the accident was caused by the negligence of the chauffeur is for the jury.\n3. Instructions\u2014must he construed as a unit. A portion of an oral charge to a jury which was continuous and a unit may not be prejudicial when the part objected to is read in connection with the whole charge as a unit.\nError to the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.\nAffirmed.\nOpinion filed January 23, 1913.\nRehearing denied February 6, 1913,\nWalter J. Miller, for plaintiff in error.\nJ. E. Ingram, for defendant in error; H. J. Rosenberg, of counsel." }, "file_name": "0606-01", "first_page_order": 636, "last_page_order": 642 }