Andrus v. S. J. Boudreaux & Son

• Decision Date: 21 January 1935
• Docket Number: 1417
• Citation: 158 So. 679
• Parties: ANDRUS v. S. J. BOUDREAUX & SON et al
• Court: Court of Appeal of Louisiana — District of US

158 So. 679

ANDRUS v. S. J. BOUDREAUX & SON et al

No. 1417

Court of Appeal of Louisiana, First Circuit.

January 21, 1935

Williams & Blackshear, of Oakdale, for appellant.

Pugh &amp Buatt, of Crowley, and J. I. Boudreaux, of Abbeville, for appellees.

OPINION

ELLIOTT Judge.

Cliff Andrus while employed in relief work in the parish of Allen under the auspices of the Emergency Relief Association was struck by a truck belonging to S. J. Boudreaux & Son, while being driven by a negro named Willie Wilson, and very seriously injured. He brought suit against S. J. Boudreaux &amp Son as owners of the truck for $ 14,868 on account of his personal injuries. Defendants appeared and excepted to plaintiff's petition on the ground that it set forth no right or cause of action. This exception was overruled.

Emergency Relief Association, having made payments of compensation to plaintiff on its part on account of his injuries, intervened in the suit and prayed that in the event of recovery by the plaintiff it have judgment against him for the compensation it had paid and might further pay him on said account.

Defendant S. J. Boudreaux & Son in their answer deny every fact alleged against them by the plaintiff on which liability is claimed to exist. They admit that the truck belonged to them, but allege that they had loaned it on the day of the injury to Charley Meshmack for the purpose of enabling him to sell oysters; that said Meshmack hired Willie Wilson for his driver; and that if plaintiff was injured by said truck, it was while it was being operated by said Meshmack as borrower from them, and that they are not responsible for same. Their defense is that Willie Wilson, in driving at the time in question, was not working in their employment nor under their control, but in the employment and under the control of said Meshmack. Denying all responsibility on said account, they alternatively and in the event the court finds that they had charge of the truck, and by their negligence caused plaintiff's injury, they then in that event allege that the plaintiff was also at fault and negligent in the matter of his injury, and that his fault and negligence contributed to bring about the accident that caused his injury, and he has no right to recover of them because of his contributory negligence and fault.

The lower court, pretermitting and expressing no opinion as to whether the defendants or Meshmack were responsible for the driving of the truck on the day in question, held that the truck was being driven carelessly and at excessive speed at the time and place in question, but took the position that plaintiff himself was at fault and negligent, and that his contributory fault and negligence contributed to and brought about his own injury, and that he could not recover on that account. Plaintiff has appealed.

Defendants answering the appeal allege that the court erred in overruling their exception of no right or cause of action, and in argument and brief pray that the exception be now sustained and plaintiff's suit dismissed on that account. The judge a quo gave reasons for overruling the exception. We have considered the exception together with the reasons of the judge a quo for overruling it.

Defendant's contention is that they are sued for damages on account of the negligence of the driver of the truck, alleged to be their employee, but that the petition does not allege that the employee was driving in the exercise of the functions in which he was by them employed. The averments of the petition are such that the question is one about which a difference of opinion may exist. There is no direct averment of facts pursuant to which it may be said that the truck was being driven by defendants' employee in the exercise of the functions in which he was by them employed. There is averment to the effect that they are responsible for the acts and omissions of the employee engaged in driving the truck, but that is a mere legal deduction. There is averment, however, that the truck was owned and operated by defendants, and other language here and there through the petition to the effect that the injury to the plaintiff was due to fault and neglect in driving the truck. Taking into account all the averments of the petition and what we think to be a proper deduction and inference from facts averred, we have come to the conclusion that the petition sufficiently alleges facts from which it may be inferred that the driver of the truck was driving it in the employ of the defendants and in the exercise of the functions in which he was by them employed.

The exception was in our opinion properly overruled. The lower court did not expressly act on the issue raised by the answer that Charley Meshmack had sole charge and control as borrower from the defendants at the time plaintiff was injured. But by overruling the exception of no cause of action the lower court in effect held, and this court affirming, in effect holds that the driver, Willie Wilson, is alleged to have been driving in the employment of the defendants.

There was evidence introduced on the trial by the plaintiff in support of an averment to the effect that defendants had agreed to pay him compensation; had paid him $ 5 and promised to pay him that amount each week on account of his injury. Defendants denied the averment, and supported their denial by testimony. There was no direct ruling on the question. Facts and circumstances adduced support both sides and leave this question in considerable doubt.

The lower court found that the truck was...