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In Re Heverin (1875) 32 Phila. Leg. the court. The court said: “The Int. (Pa.) 188, an attorney, upon the attitude taken by counsel was such as court's refusal to adjourn to allow him must necessarily have impressed the to prepare a reply to the common- jurors and others attending the court wealth's counsel, replied: "Then if with the idea that the judge had deyou will not give me time, I will not prived a prisoner on trial of a subspeak unless my legal rights are sus- stantial right, and hence acted in an tained. Let the responsibility rest arbitrary manner. If the court were with the court,” and made the same wrong in its ruling (and we are not rude answer when the court suggested called upon now to determine whether that he might address the jury fol- it was or not), an adequate remedy lowing the address made by the prose- was afforded by the law." cuting attorney. Again, after the But in Ex parte Coffee (1913) 72 court had charged the jury, he said Tex. Crim. Rep. 209, 161 S. W. 975, with great vehemence: “I desire where the court granted one not a your Honor to say to this jury there licensed attorney the privilege of is not a word of evidence to warrant appearing for his minor son in a a conviction.” The court having de- criminal prosecution, it was held not clined so to charge, he continued in to be contempt of court for the county the same manner: “Then I ask that attorney to state to the court that if my client shall be heard,” etc. Other such privilege were given he would indignities and insults were offered sever his connection with the case, the court, for all of which the attorney nor for him so to sever his connection, was adjudged in contempt and fined. where the court did not order him to Said the court: If the respondent proceed with the case, but adjourned, had conceived that his client was and subsequently appointed another aggrieved by the rulings of the court, attorney, who conducted the prosecuinstead of losing his temper, he tion. The court said: “The simple should have submitted to the rulings, fact that a lawyer states he severs dand after the trial reviewed them his connection with a case in the upon motion for a new trial or in the

presence of the court would not, in supreme

He should have our judgment, in and of itself, form steadily kept before him that it was a basis of contempt punishment. the duty of the court to decide every There must be something more. If question raised by the learned coun- the court had ordered him to proceed, sel on either side, according to the and he had disobeyed the order, we court's best judgment of the law, and would have a different proposition. not lose his temper when such judg

There may be reasons why an attorney ment was given.

may under some circumstances sever In People ex rel. Chanler v. New

his connection with a case, and in burger (1904) 98 App. Div. 92, 90

which he would not only be justified, N. Y. Supp. 740, where an attorney

but the ethics of his profession, as persisted in his attempts to compel

well as the law, may demand or authe court to reverse its ruling, and

thorize such action. We are of the abruptly deserted the case in the midst of the trial because he could

opinion, therefore, that the mere act not coerce the court into compliance

of stating he severed his connection with his request, it was held proper

with the case would not be sufficient for the court to assess a fine for con

to justify the court in placing the tempt, though the conduct of the at

attorney in contempt. We are of torney was prompted by excessive opinion the county attorney was not zeal, under a misunderstanding, for in contempt of court in stating that the time being, of what his duties

he severed his connection with the required, and though there was no in- case under the circumstances." tent to reflect upon the integrity of

L. S. E.


(N. J. -, 123 Atl. 760.)



New Jersey Court of Errors and Appeals March 3, 1924.

(- N. J. – 123 Atl. 760.) Trial — jury - injury to passenger on jitney bus explosion of tire.

The jury must determine the question of liability of the proprietor of a motor bus by explosion of a tire, where noises emanating apparently from the wheel had attracted the attention of the driver several times, so that he stopped to examine the cause.

[See note on this question beginning on page 1202.]

APPEAL by defendant from a judgment of a trial court in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed.

The facts are stated in the opinion of the court.
Mr. George L. Record for appellant. and the trial court, refusing a mo-

Messrs. Lazarus & Brenner for re- tion to nonsuit and a motion to dispondent.

rect a verdict, allowed the case to go Minturn, J., delivered the opinion to the jury, who found for the plainof the court:

tiff. The plaintiff boarded a jitney bus The legal objection now urged to of the stage type, owned by the de- the judgment is that the trial court fendant and operated by his servant, erred in refusing to nonsuit or to and used upon the Hudson county direct a verdict, for the reason that boulevard as a common carrier of

the accident was of that unavoidable passengers. It was equipped with character which no degree of care pneumatic tires which were placed could have obviated. We are inupon wheels which revolved under clined to conclude that the learned the seats immediately under the trial court was not in error in this floor of the vehicle. While in opera

respect. It is unnecessary to place tion it was observed that the bus the case in that character of tortemitted a peculiar noise, emanating feasance, which falls under the rule apparently from the location of the inherent in the maxim "res ipsa loright rear wheel. Three times the quitur," although

quitur," although it might with driver left his seat to observe the some degree of reason be contended conditions under which the noise that it is within that category of was produced, but returned to his torts which, at least, calls upon the place, apparently unable to locate defendant for an explanation with the trouble. Thereafter, while the the view of eliminating him from bus was proceeding upon its course

the category of an active or passive under those conditions, the tire in

tort-feasor. Hughes v. Atlantic question with a loud explosion blew City & S. R. Co. 85 N. J. L. 212, out, raising a portion of the flooring L.R.A.1916A, 927, 89 Atl. 769; Macover which the plaintiff was sitting, kenzie v. Oakley, 94 N. J. L. 67, 108 to such a degree as to strike him and Atl. 771; Mannon v. Vesper Lodge, inflict injuries which present the

97 N. J. L. 215, 116 Atl. 784; Higbasis for this suit. This situation

This situation gins v. Goerkekrich Co. 91 N. J. L. was fully corroborated by witnesses 464, 103 Atl. 37. at the circuit, the defendant offering In the Mackenzie-Oakley Case the no testimony in rebuttal thereof, plaintiff, an invitee, was injured by the skidding of an automobile due to accident which occurred, and which the condition of the road after an occasioned the injury. This court unexpected shower of rain, and the there declared that the direction of case was held to be one for the jury, a verdict for the defendant was erfor the purpose of enabling the de

roneous, and that the question of fendant to exculpate himself from defendant's negligence was for the the presumption of negligence which jury. We there reiterated the rule arose from the unexplained and ab- that foresight for harm, in view of normal happening of the accident. an existing abnormal or dangerous In the last case mentioned, the plain situation, standardized by the care tiff, an invitee in a department likely to be exercised, in the circumstore, was examining an ice box, stances, by the ordinarily prudent when the lid, which was supposed man, furnished the controlling test, to be securely upheld, suddenly fell, and we there observed that one is injuring her hand; and the same within the category "who, observing rule requiring an explanation upon the probability of impending danger the part of the defendant for the from adopting a certain course of purposes of exculpation was there action, does all that such a man applied.

could have reasonably done to avoid The tort-feasance in the case at inmeshing himself and those inbar consisted in negligence in op- trusted to his care in the dangerous eration, with notice of a dangerous environment that confronted him, defect which might cause damage to and thus creating the proximate those intrusted to defendant's care. cause or the causa sine qua non The defendant being a common car- which superinduced the accident." rier of persons, the high degree of Such is the rule applicable to the care required of him in the circum- situation existing in the case sub justances has become a proverbial rule dice; and the learned trial court, of law; and whether he exercised therefore, properly left the question that care in his conduct of the car, to the jury for solution. after having received notice on at The judgment appealed from will least three distinct occasions of an be affirmed. existing defect or an abnormal sit

For affirmance: The Chancellor, uation in one of the necessary or

the Chief Justice, Justices Trengans of locomotion, chard, Minturn, Kalisch, Black, and Trial-jury- apparently of suffi

Katzenbach, and Judges Heppensenger on jitney cient moment

heimer, Gardner, Van Buskirk, and cause him to stop

Clark. and look at the defective parts before proceeding fur- For reversal: None. ther upon his route, became a jury question.

NOTE. The case in this respect is not, in legal principle, unlike that of Beck The duty and liability of a carrier v. Hines, 95 N. J. L. 158, 112 Atl. of passengers for hire by automobile 332, where the captain of a ferry- is the subject of the annotation in 4 boat, presumably experienced in his A.L.R. 1499, which is supplemented by business, and with a possible danger the annotation following ANDERSON V. of an approaching vessel at high YELLOW CAB Co. post, 1202. More speed in sight, took the risk of specifically, as to the liability of probringing his boat sufficiently close to prietors of jitneys or motor busses, the on-coming danger to invite the see subd. I. of those annotations.

injury to pas


busexplosion of tire.

(108 Ohio St. 484, 141 N. E. 267.)

C. H. KORNER et al., Doing Business under the Firm Name of C. H.

Korner & Son, Piffs. in Err.,

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(108 Ohio St. 484, 141 N. E. 267.) Carriers — liability of operator of taxicab.

1. The same rule and measure of responsibility attach to the owner and operator of a public taxicab for the acts of agents and servants as apply to other common carriers.

[See note on this question beginning on page 1202.] Master and servant liability for Carriers taxicabs. acts after working hours.

3. Persons owning and operating 2. A person employed as a driver of public taxicabs for the transportation a public taxicab, whose duties under of passengers, holding themselves out his contract of employment usually as willing to carry persons generally end at 6:30 P. M., and who on a single

for hire, are "common carriers." occasion, without being specially re

[See 1 R. C. L. Supp. 1163; 4 R. C. L. quested so to do, drives one of the

Supp. 275. See also note in 4 A.L.R. vehicles of his employer, at about the

1501.] hour of midnight, in transporting a

assault by driver liability. passenger, the usual and customary

4. It is the duty of the driver of a fee for such service being collected by public taxicab to treat passengers the driver, and the same being prompt respectfully, and the owner of such ly paid to the employer, is engaged in

taxicab and employer of such driver

must respond in damages to a pasthe service of the master, and the same

senger for the unwarranted assault measure of responsibility attaches to

of such driver committed in the course the master for the acts of the servant

of such transportation. as though the service was performed [See 4 R. C. L. 1169; 1 R. C. L. Supp. during the regular hours of service.

1286; 4 R. C. L. Supp. 308.] Headnotes by the COURT.

ERROR to the Court of Appeals for Crawford County to review a judgment affirming a judgment of the Court of Common Pleas in favor of plaintiff in an action brought to recover damages for an assault committed by defendants' servant, alleged to have been negligently and carelessly employed by them as driver. Affirmed.

The facts are stated in the opinion of the court. Messrs. Gallinger & McCarron, for Thresher Co. 97 Minn. 305, 5 L.R.A. plaintiffs in error:

(N.S.) 598, 107 N. W. 133; Rahmel v. Defendants were not liable to re- Lehndorff, 142 Cal. 681, 65 L.R.A. 88, spond in damages for the criminal act 100 Am. St. Rep. 154, 76 Pac. 659, 16 of their employee, the only negligence Am. Neg. Rep. 7; Hardeman v. Wilcharged against them being that of liams, 150 Ala. 415, 10 L.R.A.(N.S.) employers.

653, 43 So. 726; 26 Cyc. 1526; Crelly Louisville & N. R. Co. v. Wolfe, 80 v. Missouri & K. Teleph, Co. 84 Kan. Ky. 84; Mechem, Agency, § 740; 19, 33 L.R.A.(N.S.) 328, 113 Pac. 386, Stranahan Bros. Catering Co. v. Coit, 3 N. C. C. A. 854; Collette v. Rebori, 55 Ohio St. 410, 4 L.R.A. (N.S.) 506, 107 Mo. App. 711, 82 S. W. 552; Hud45 N. E. 634; Morier v. St. Paul, M. & son v. Missouri, K. & T. R. Co. 16 Kan. M. R. Co. 31 Minn. 351, 47 Am. Rep. 470; Mirick v. Suchy, 74 Kan. 717, 87 793, 17 N. W. 952; Slater v. Advance Pac. 1141, 11 Ann. Cas. 366; Johnson

v. Alabama Fuel & I. Co. 166 Ala. 534, jury were further definitely in52 So. 312.

structed that, if the act of interMessrs. Chester A. Meck and Ben

course was with plaintiff's consent, jamin Meck for defendant in error. the verdict should be in favor of the

Marshall, Ch. J., delivered the defendants. opinion of the court:

In addition to the allegations of The plaintiff in this action, a the petition that plaintiff was a passenger in a public taxicab, sued passenger in a public taxicab drivto recover damages from Korner & en by an employee of the firm ownSon, as owners and operators of a ing and operating the taxicab, the line of public taxicabs then being petition contained the further alleoperated for hire in the city of gation that the driver was a person Bucyrus, Ohio. It was alleged in of low morals and a depraved charthe petition and admitted in the an- acter, which fact his employers swer that the defendants did, at the knew, or by the exercise of orditime complained of, own and oper- nary care should have known. ate a line of taxicabs for hire. It Much of the charge of the court was claimed that plaintiff, at about is taken up with that feature of the the hour of 12 o'clock at night, went case, which need not receive serious to the place of business of defend- attention at our hands, because the ants in Bucyrus, and applied for a conclusions we have reached in this taxicab to take her to her home in controversy make it unnecessary to a remote part of the city, and found prove that the owner and operator Edward Driscoll, an employee of of a public taxicab had notice or defendants, who started to take her knowledge of the depraved characto her home in a taxi, but who, in- ter of the driver. The jury restead of going directly to her home, turned a verdict in favor of the drove the machine into the country, plaintiff, and this verdict must have where he assaulted and ravished been based upon a finding that her.

rape, as defined by the court, had At the trial the defendants en- actually been committed. deavored to prove that Driscoll was

While it was not seriously quesnot on duty at the time; that by tioned that the defendants were the terms of his employment his du- common carriers of passengers, inties ceased at 6:30 in the evening. asmuch as there has never been an It was admitted, however, that authoritative declaration by this Driscoll used a machine belonging court upon this point, it will be to the defendants, and on his return proper to briefly state that all the to the garage paid into the hands authorities, without exception, have of one of the defendants the usual declared that public taxicabs, operfee for such taxi service.

ated for hire, and which are offered The testimony of plaintiff, strong- promiscuously to ly supported by the testimony of the public for the Carriers-taxiher mother and other attendant cir- service of transcumstances, if believed, made portation of passengers, are comclear case of rape.

Driscoll testi- mon carriers. This is true, without fied at the trial, and while admit- any regard to the limits of the seryting having driven the girl into the ice. Huddy, Auto. 5th ed. p. 45; country before taking her home, Berry, Auto. 3d ed. $ 1502. and admitting the act of sexual in- It was admitted in the answer tercourse, denied that it was against that they "were the owners and opher will.

erators of a certain line of taxicabs The court clearly instructed the for hire in the city of Bucyrus, jury that there could be no recovery Ohio," and in their testimony that unless it was found that there was they held themselves out as willing unlawful carnal knowledge by force to haul people in taxicabs for hire. and against plaintiff's will. The The court further instructed the

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