
    44310.
    ENGLISH v. YELLOW CAB COMPANY.
    Submitted March 3, 1969
    Decided April 25, 1969
    Rehearing denied June 19, 1969.
    
      Joe R. Edwards, J. Richmond Garland, M. T. Hartman, III, for appellant.
    
      Hansell, Post, Brandon & Dorsey, Jule W. Felton, Jr., for appellee.
   Pannell, Judge.

The cab bore a name which was used by the defendant company and the driver gave the plaintiff a card bearing his name, the cab number, and the telephone number of the defendant. This case was comparable to the Southern R. Co. case. While four members of this court have expressed doubt as to the correctness of the decision in the Clark case, it is distinguishable on its facts from the present case. The present case shows a telephone request was made to the Yellow Cab Company for a taxi at a particular spot, and that a taxicab bearing the name “Yellow Cab” shortly thereafter appeared and took the passengers awaiting the called cab. In our opinion, this evidence, coupled with the testimony of the plaintiff that the cab belonged to the Yellow Cab Company, amply shows the probability of the facts necessary to be proved and that a reasonable man could infer from it that the cab belonged to the defendant Yellow Cab Company of Atlanta and the person driving it was the servant or agent of the defendant and was acting within the scope of his employment at the time of plaintiff’s injury. Cf. Yellow Cab Co. v. Nelson, 35 Ga. App. 694 (134 SE 822). The evidence was sufficient to show the negligence of the driver and injury to the plaintiff resulting therefrom. Accordingly, the trial court erred in directing a verdict for the defendant at the close of the plaintiff’s evidence.

Judgment reversed.

Bell, P. J., Jordan, P. J., Hall, Deen and Whitman, JJ., concur.

Eberhardt and Quillian, JJ., dissent.

Felton, C. J., not participating.

Quillian, Judge,

dissenting.

In my opinion the case sub judice is controlled by Clark v. Atlanta Veterans Transportation, 113 Ga. App. 531, supra, and the direction of the verdict should be affirmed. In this case as in the Clark case the evidence was not sufficient to prove that the cab was the property of the defendant, which, under the facts, is a necessary element in the circumstantial proof of agency.

I am authorized to state that Judge Eberhardt concurs in this dissent.  