Brenner v. Ford

• Decision Date: 02 January 1906
• Docket Number: 15,735
• Citation: 40 So. 894,116 La. 550
• Court: Louisiana Supreme Court
• Parties: BRENNER et al. v. FORD

40 So. 894

116 La. 550

BRENNER et al. v. FORD

No. 15,735

Supreme Court of Louisiana

January 2, 1906

Rehearing Denied January 29, 1906.

Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.

Action by Henry Brenner and others against John McW. Ford. Judgment for defendant, and plaintiffs appeal. Affirmed.

Alfred Dillingham Land, Jr., and Edgar Williamson Sutherlin, for appellants.

Alexander & Wilkinson and Fullilove & Mills, for appellee.

NICHOLLS J. LAND, J., takes no part, having presided below when defendant's servant was convicted of criminal negligence.

OPINION

NICHOLLS J.

Statement of the Case.

This suit is brought by father and mother of a child claiming damages for its death. The action is based upon allegations that their son, Leon Brenner, aged seven years, was run over and killed while crossing Gary street in Shreveport, by a horse owned by the defendant, then being driven by the latter's driver. It is averred that their son was guilty of no negligence whatever, but that same was due to the fact that the said servant of the said Ford was grossly and criminally negligent, and was not using due care and caution in driving the horse along the crowded streets of said city; that said horse was known by said Ford to be extremely nervous, high strung, and dangerous to drive, save by a person of great skill and discretion; that said Weeden, to the knowledge of said Ford, did not possess the skill necessary to drive and manage said animal properly; that had said Weeden been using due care and caution to avoid injury to pedestrians on said street, he would have avoided running over petitioner's child; that if he did not see said child it was because he was not using due watchfulness such as is necessary in driving through the streets of a city; that said horse was not driven on the said occasion with bit severe enough to enable a driver of Weeden's skill and experience to control him when necessary; that it was negligence on the part of said Ford to permit the use of such a bit on an animal as difficult to guide and control as was the horse in question; that said horse was in the charge and control of the said Weeden as Ford's servant, and with his permission, express or implied, from the fact that said Weeden was employed by said Ford to care for said animal and that said animal was under the control of said Weeden.

Petitioners represent that said horse and vehicle passed over their child, mashing and bruising his face and body, breaking his jaw, crushing his ribs, and generally injuring him so that after suffering great pain for several hours he died from effects thereof; that the right of action of their said child to recover damages for said pain and suffering has survived over to them; that they have expended $ 250 for medical attention to said child, and for funeral expenses; that in addition thereto they have been deprived of the affection and support of their child, have suffered great agony of mind by his loss, and have been damaged thereby in the full sum of $ 10,000.

In view of the premises petitioners pray that after due citation they have and recover judgment against the said Ford in the full sum of $ 10,250, with 5 per cent. per annum interest thereon for costs, and for general and equitable relief.

Defendant, after pleading the general issue, averred that the driver of said horse was not acting within the scope of his employment at the time of said accident, but, on the contrary, that he took said horse out of its stable in violation of the orders of defendant, and without his knowledge or consent; that said driver was not employed to drive said horse, and, without any right or consent to do so, had secretly taken said horse out on the day of the accident, contrary to the orders of defendant. That in any event the accident was caused by the negligence of plaintiff and his said child.

In view of the premises he prayed that plaintiff's demand be rejected at his cost, and for general relief.

The case was tried before a jury which rendered a verdict in favor of the defendant by a vote of 10 to 2, and plaintiff appealed.

Opinion.

Plaintiff attributes the verdict returned by the jury to the refusal of the district judge to give to it the special charge which had been requested. The instruction refused to be given was as follows:

"I charge you that the test of the defendant's liability for the act of his servant is not as to whether or not he was disobeying instructions or discharging them in exercising the horse in that particular way [by driving it], but the true test is this: Was the servant engaged in discharging his duty to defendant as his employer, or was he simply acting for himself or in pursuit of his own personal objects? The facts that a servant exercises a horse in the one way that is forbidden him instead of the other ways that are permitted him will not release the master from responsibility for his negligence, provided that in so doing the servant was acting bona fide in the interest of his master, and not in the pursuit of his own affairs."

The judge's assigned reasons for his refusal were that he had already charged the jury that the liability of defendant depends on the fact "whether or not the driver was at the time of the accident acting in the sphere of his employment."

Plaintiffs say this refusal involved the very meat of the case. It practically withdrew from the jury the question of defendant's liability in the event the servant did the injury while exercising the horse for the master in the scope of his employment, but in violation of the manner in which he had been instructed to exercise it, and thereby their case was knocked down.

They quote from Rapalje & Mark's Digest, p. 63, No. 74, to the following effect:

"When a servant is engaged in accomplishing an end which is within the scope of his employment and while so engaged adopts means reasonably intended and directed to the end which result in injury to another, the master is answerable for the consequences regardless of the motives which induced the adoption of the means and this too even though the means employed are outside of his authority and against the express orders of the master."

They cite also Mitchell v. Cransweller, 13 C.B. 237; Quinn v. Power, 87 N.Y. 535, 41 Am. Rep. 392; Bowler v. O'Connell (Mass.) 38 N.E. 498, 27 L.R.A. 177, 44 Am. St. Rep. 359; Cooley on Torts (Ed. 1880) pp. 533 to 540; 1 Thompson on Negligence (Ed. 1901) § 519; Singer Manf. v. Rahn. Id. (C. C.) 26 F. 912, 132 U.S. 518, 522, 523, 10 S.Ct. 175, 33 L.Ed. 440; Phil. & Reading R. R. v. Derby, 14 How. 468, 14 L.Ed. 502; Story on Agency, § 452; Smith on Master & Servant, 452; Sleath v. Wilson, 9 Carr & Payne, 607; New Jersey Steamboat Co. v. Brockett, 121 U.S. 637 (645), 7 S.Ct. 1039, 30 L.Ed. 1049; Philadelphia R. R. v. Quigley, 21 How. 202 (210), 16 L.Ed. 73; Texas Pac. Ry. Co. v. Scoville, 62 F. 730, 10 C.C.A. 479, 27 L.Ed. 179; Lake Shore R. R. Co. v. Prentice, 147 U.S. 101 (109), 13 S.Ct. 261, 37 L.Ed. 97; 20 Am. & Eng. Ency. of Law (2d Ed.) pp. 165, 167, 168, 170; Shear & Redf. on Negligence, §§ 141, 146, 147, 148, 159, 160.

Plaintiff urges that the evidence establishes "that the defendant told the servant not to drive the horse and then told him to exercise her without limiting him to any specific method of exercising her and without telling him to exercise her only by leading or driving, would necessarily leave the servant under belief that he was to exercise her by driving her the only appropriate or expedient way in which she could be exercised at all, and the only way in which the horse was accustomed to be used. The doubt and uncertainty from defendant's statement as to what were his instructions were certainly calculated to leave and did leave the servant under the belief that he was to exercise the horse in the only way that such a horse could be adequately and appropriately exercised; that is by driving her."

The defendant on the other hand contends:

(1) That the master is not bound for the acts of the servant beyond the scope of his powers and in disobedience of his orders. Corporation of Minden v. Silverstein, 36 La.Ann. 916; Williams v. Pullman Car Co., 40 La.Ann. 87, 3 So. 631, 8 Am. St. Rep. 512; McDermott v. American Brewing Co., 105 La. 124, 29 So. 498, 52 L.R.A. 684, 83 Am. St. Rep. 225.

(2) Where a servant in the performance of his duties is not accustomed or authorized to use a horse or conveyance, and wrongfully takes the horse or conveyance belonging either to the master, or to some other person, and in thus performing his service causes injury, the master is not liable. Shelton v. Toronto, 13 Ont. 139; Wilson v. Penn. R. R. Co., 63 N.J. Law, 385, 43 A. 894, note 1; 20 Am. & Eng. Ency. of Law, p. 166. He cites, additionally, Ritchie v. Waller (Conn.) 28 A. 29, 27 L.R.A. 161, 38 Am. St. Rep. 361, and Baltimore Consolidated R. Co. v. Pierce (Md.) 43 A. 940, 45 L.R.A. 527.

The article of the Civil Code upon a portion of which defendant relies to establish his nonliability for the death of plaintiff's son is article 2320 which declares that 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. Responsibility only attaches when the masters or employers might have prevented the act which caused the damage, and did not do so.

The first matter, therefore, to which we direct our attention in this case, is the ascertainment of what was the exact employment for which the defendant engaged John Weeden, the man who was driving defendant's horse at the time of the accident.

The testimony shows that the defendant at that time was living and had lived...