Blanchard v. Ogima

• Decision Date: 12 November 1968
• Docket Number: No. 48875,48875
• Citation: 215 So.2d 902,253 La. 34
• Parties: Edgar Frank BLANCHARD and the Home Indemnity Company v. Sam OGIMA, Vincent Russo d/b/a Russo Motors.
• Court: Louisiana Supreme Court

Page 902

215 So.2d 902

253 La. 34

Edgar Frank BLANCHARD and the Home Indemnity Company v. Sam OGIMA, Vincent Russo d/b/a Russo Motors.

No. 48875.

Supreme Court of Louisiana.

Nov. 12, 1968.

Rehearing Denied Dec. 16, 1968.

James J. Morrison, E. Howard, McCaleb, III, New Orleans, for plaintiffs.

Francis G. Weller, Deutsch, Kerrigan & Stiles, Charles E. Cabibi, Anthony J. Russo, New Orleans, for defendants-appellees.

BARHAM, Justice.

Edgar Frank Blanchard and Home Indemnity Company, his employer's workman's compensation insurer, instituted this suit for damages resulting from personal injuries suffered by Blanchard. A Volkswagen titled in the name of Russo Muffler Shop, a trade name under which the defendant Vincent Russo operated, was driven by the codefendant Sam Ogima and left parked on an incline unattended. The car became disengaged from the parked position and crushed Blanchard against another automobile. General Guaranty Insurance Company, Russo's insurer, was made a codefendant by amended petition and was made a third party defendant by Russo.

The trial court rendered judgment for the plaintiffs against Ogima, dismissed the suit against Russo and General Guaranty, and also dismissed the third party demand. The Court of Appeal, Fourth Circuit, affirmed the district court's judgment. See 200 So.2d 374. The trial court based its judgment upon a finding that Ogima was an independent contractor, and that Russo and his insurer were therefore not liable. The trial court did not consider the possible liability of General Guaranty under the omnibus clause of its insurance policy. The basis of the Court of Appeal's judgment was its finding that there was a relationship of Principal and agent between Russo and Ogima, but that the agent Ogima had deviated from his Agency, and that Russo was therefore not liable. The Court of Appeal further found that General Guaranty Insurance Company was not liabile for Ogima's negligence under the omnibus clause of its policy because coverage under the insurance policy did not extend to the particular vehicle involved.

We granted certiorari upon application of the plaintiffs, Blanchard and Home Indemnity. Since lengthy findings of fact by the trial court and lengthy findings of fact by the appellate court have been given in this case, we will briefly set forth only the accepted conclusions of fact necessary for this opinion.

Neither the negligence nor the liability of Ogima is in dispute. The Court of Appeal found that the defendant Ogima was 'a kind of free-lance individual known in the trade as a 'bird dog' salesman'. This term is derived from such a salesman's practice of 'flushing' out a prospect for the purchase of a certain type of car. The salesman then makes an arrangement with a car dealer to offer the car to be prospect, and is paid on commission or by retaining all of the purchase price above an agreed figure. Ogima also sold cars owned by Russo from a used-car lot in Gentilly. The Court of Appeal found that there was no joint venture between Russo and Ogima, and also that 'Apparently Russo had little or no control over Ogima's sales contacts or methods'. It also found that Ogima possessed and used the Volkswagen with Russo's permission and consent for the purpose of selling it. The legal conclusions by the Court of Appeal based upon its factual findings were:

'* * * Ogima was not an employee of Russo over whom he exercised the usual control and supervision. * * *' (Emphasis here and elsewhere has been supplied.)

'* * * that the necessary elements of independent contractor status are not present here nor were the elements of employer-employee. The relationship between Russo and Ogima was that of principal and agent.'

We accept these legal conclusions of the appellate court, and particularly the finding that Russo and Ogima were principal and agent when the accident occurred. We cannot accept, however, the Court of Appeal's finding that this relationship alone is sufficient to establish liability on the part of Russo if the negligent acts of Ogima were within the 'scope of his authority'. The consequences and liability for the negligent and tortious acts of another do not flow simply because of a Principal-agent or Principal-mandatary relationship. Civil Code Article 2985 et seq., titled 'Of Mandate', define the nature of the contractual relationship and the obligation of the parties under a mandate, but do not attempt to fix liability for the tortious acts of a mandatary. Russo's liability, if any, must arise under a master-servant relationship. Article 176 of the Civil Code provides:

'The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.'

It is apparent, then, that the pertinent articles under the title dealing with quasi-contracts and offenses and quasi-offenses, Article 2315 et seq., govern the instant case, and that the articles under the title 'Of Mandate' are not applicable.

'Art. 2315. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it * * *.'

'Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.'

'Art. 2320. Masters and Employers are answerable for the damage occasioned by their Servants and Overseers, in the exercise of the functions in which they are employed.

'Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.

'In the above cases, responsibility only attaches, when the Masters or employers, teachers and artisans, Might have prevented the act which caused the damage, and have not done it.'

These provisions of our Code have their source in the Code Napoleon (1804), Articles 1382--1384. Article 1384 of that Code provides in part:

'* * * masters and trustees (are responsible), for the injury caused by their servants and managers in the functions in which they have employed them * * *.' (Barrister of the Inner Temple tr.)

Planiol says of this article of the Code Napoleon:

'There is nevertheless something exceptional in Art. 1384, and that is the presumption of fault it establishes against the persons it enumerates. As a consequence, this text should receive a strict interpretation, as should all those which control legal presumptions.' 2 Pt. 1 Planiol, Treatise on the Civil Law (La. State Law Inst. tr. 1959), sec. 909A, p. 508.¹

The Anglo-American or common law doctrine comparable to our master-servant doctrine is labeled 'respondeat superior'.² Although there was the foundation within the civilian law for development of our own theory of vicarious liability (La. Civ. Code Arts. 2315--2320), our jurisprudence has drawn freely upon the common law to the extent that it is difficult to differentiate the civilian and common law theories.³ Both civilian and common law were and are very restrictive in extending responsibility for the acts of others. Our Article 2320 restricts this liability to 'masters and employers for * * * their servants and overseers * * *' When they '* * * might have prevented the act which caused the damage, and have not done it'. Louisiana jurisprudence has not interpreted this restriction literally, and the demands of modern commerce and the needs of society would not permit such a stringent and severe limitation of the liability of a master for his servant. However, by inquiring into the overall relationship of the parties and the element of control, our jurisprudence has established reasonable definitions and limitations of vicarious liability to replace the literal codal restriction which has fallen into desuetude. James v. J. S. Williams & Son, 177 La. 1033, 150 So. 9 (1933); Jones v. Shehee-Ford Wagon & Harness Co., 183 La. 293, 163 So. 129 (1935); Valley v. Clay, 151 La. 710, 92 So. 308 (1922); Godchaux v. Texas & P. Ry. Co., 144 La. 1041, 81 So. 706 (1919). See also the following Court of Appeal cases: Crysel v. Gifford-Hill & Co., 158 So. 264 (La.App.2nd Cir. 1935); McAllister v. Jackson Brewing Co., 6 So.2d 179 (La.App. Orleans 1942); Jones v. Shehee-Ford Wagon & Harness Co., 157 So. 309 (La.App.2nd Cir. 1934). It is the Right of control of the time and physical activities in the other party and the existence of a close relationship between the parties which determine that one is a servant. However, the Louisiana courts as well as the commentaries have upon occasion overlooked the elements of control and relationship and have used interchangeably and without distinction 'principal and agent' ('principal-mandatary') and 'master and servant'.⁴

The decision relied upon by the Fourth Circuit Court of Appeal in the instant case, Morton v. American Employers Insurance Co., 104 So.2d 189 (La.App.2nd Cir. 1958), is a case in which such language was carelessly employed. In that case the court stated:

'* * * These facts, in our opinion, show quite clearly Whitney Merely appointed Busher his Agent or attorney for the purpose of selling the vehicle. In delivering the car in question to Busher, it was unnecessary for Whitney to expressly confer power to perform functions by his agent such as are customarily performed in the ordinary course of business without express authority. * * *'

In the Morton case the court then quoted Louisiana Civil Code Article 3000, which concerns the contractual obligation of principals and mandataries, and concluded:

'* * * that Whitney and Busher as to the transaction between themselves, were Principal and agent.'

That court then erroneously held the principal liable for the physical tort of his agent who was neither servant nor employee, for there were absent both the right to exercise...