O'Brien v. Traders & General Ins. Co.

• Decision Date: 27 December 1961
• Docket Number: No. 5434,5434
• Citation: 136 So.2d 852
• Parties: Thurman O'BRIEN v. TRADERS AND GENERAL INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 852

136 So.2d 852

Thurman O'BRIEN v.TRADERS AND GENERAL INSURANCE COMPANY et al.

No. 5434.

Court of Appeal of Louisiana, First Circuit.

Dec. 27, 1961.

On Application for Rehearing Feb. 6, 1962.

Certiorari Denied March 28, 1962.

John Makar, Natchitoches, for appellant.

Borron, Owen, Borron & Delahaye, Durrett, Hardin, Hunter, Dameron & Fritchie, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellee.

Before ELLIS and HERGET, JJ., and MILLER, J. pro tem.

HERGET, Judge.

Honorable Paul B. Landry, Jr., Judge of the Eighteenth Judicial District Court, (now a member of this Court) for written reasons assigned in this case rendered the following judgment from which Plaintiff appealed:

'Opinion and Judgment

'Filed February 5, 1960

'Judgment:

'By this action plaintiffThurman O'Brien seeks to recover damages in the sum of $227,316.40 for alleged personal injuries reputedly sustained and incurred as the result of an automobile accident which occurred on U.S. Highway 190 near Livonia, Pointe Coupee Parish, Louisiana, on December 1, 1957, at approximately 5:30 P.M. Judgment in solido is prayed for against Traders and General Insurance Company(hereinafter referred to simply as 'Traders'), Louisiana State University and Agricultural and Mechanical College(hereinafter referred to simply as L.S.U.) and The Insurance Company of the State of Pennsylvania(hereinafter referred to simply as Pennsylvania.)

'The petition alleges in substance that as plaintiff was proceeding easterly along the highway in the left or inside eastbound traffic lane (the highway being a four lane highway running east and west with two eastbound and two westbound lanes on either side of a separating neutral ground) his automobile was struck from the rear by the eastbound vehicle of one Austin W. Johnson proceeding in the same direction as plaintiff.Traders is the liability insurer of the vehicle owned and being driven by Johnson; L.S.U. is Johnson's employer and Pennsylvania is the liability insurer of all L.S.U. employees.

'Defendant L.S.U. filed an exception asserting its immunity from suit as an agency of the State of Louisiana which said exception was sustained by the Court and plaintiff's complaint dismissed as to this particular defendant.Accordingly the sole remaining defendants are the insurance companies hereinabove named.

' Although negligence on the part of Johnson is not conceded by defendants, it is not seriously disputed.In this connection the evidence shows that the accident occurred on the open highway at which time plaintiff was traveling at a moderate rate of speed in the inside eastbound traffic lane.Plaintiff reduced the speed of his vehicle to approximately five miles per hour to avoid striking a preceding vehicle making a left turn through a break in the neutral ground.Johnson failed to timely note plaintiff's reduction in speed and although he applied his brakes he was unable to stop and struck plaintiff's vehicle in the rear.It is undisputed that the impact was relatively light, it being shown that Johnson was proceeding approximately 10 miles per hour at the moment of collision.The right front of the Johnson car struck the rear of plaintiff's automobile in the vicinity of its left rear fender with force sufficient to cause total damages of only $57.00 to plaintiff's car and $67.73 to the Johnson vehicle.Both vehicles traveled a very short distance after the collision and the testimony of plaintiff himself is to the effect the blow was so slight that it did not cause him to be thrown against the steering wheel or strike any portion of his body whatsoever.

'Considering first the manner in which the collision occurred this court is of the opinion the evidence shows the accident was caused by the negligence of Johnson in following too closely behind plaintiff's vehicle on the open highway and failing to maintain a proper lookout.That plaintiff himself was maintaining a proper lookout is evidenced by his observance of the left turning vehicle and reducing the speed of his vehicle so that the motorist ahead could complete his intended left turn without incident.Plaintiff's vehicle did not strike or come into contact with the automobile that was in the process of turning left.If plaintiff's speed and distance behind the left turning vehicle was such that plaintiff could avoid contact with this vehicle there appears no valid reason why Johnson did not do the same with respect to plaintiff's automobile.Had Johnson not been following so closely behind plaintiff and had he duly observed the movement of plaintiff's automobile he would have realized plaintiff was in the act of reducing his speed or stopping and that to avoid running into the rear of plaintiff's car he must do likewise.It is evident Johnson did not make this observation in time to avoid a collision and his failure in this regard was the sole proximate cause of the accident.It follows, therefore, that there is liability on the part of Johnson's insurer Traders.

'In order to hold Johnson's employer L.S.U. and the employer's insurer Pennsylvania, plaintiff maintains Johnson was acting within the scope and during the course of his employment by L.S.U. at the time of the accident.On this issue the evidence shows Johnson is employed by L.S.U.'s Agricultural Extension Service in the capacity as Assistant County Agent for Franklin Parish, Louisiana, his residence being in Winnsboro, Louisiana.Johnson was employed by the university but his salary is paid jointly by L.S.U. and the Parish of Franklin.On the day of the accident (a Sunday) Johnson was enroute to L.S.U. at Baton Rouge, Louisiana, to attend a meeting at which he had been ordered to be present which meeting was scheduled for 8:30 A.M. the following Monday morning.Hotel accommodations had been arranged for Johnson on the university campus for the night of December 1, the arrangements having been made by officials of the university.The automobile Johnson was driving at the time of the accident was his own.In traveling from his home to Baton Rouge for the meeting in question Johnson was free to choose whatever mode of transportation suited his convenience.He was paid mileage at the rate of $2$ per mile from his home to Baton Rouge irrespective of whether he traveled by private or public conveyance.In the course of his work Johnson was not required to travel by automobile but whenever he traveled on official business he was compensated at the rate of 2$ per mile regardless of the method of transportation he selected.On previous occasions when Johnson made similar trips from his home in Winnsboro to Baton Rouge he was paid mileage for 155 miles computed by measuring the shortest highway route between the two points which itinerary passed through Natchez, Mississippi.For the journey in question he was actually paid mileage for 155 miles of travel.On the day preceding the accident (a Saturday) Johnson left his home in Winnsboro at approximately 3:00 P.M., and drove to Simpson, Louisiana, where he spent the night as guest in the home of his mother-in-law.The next afternoon Johnson left the home of his mother-in-law in Simpson, Louisiana, and proceeded toward Baton Rouge by way of Boyce and Alexandria, Louisiana.The distance from Winnsboro to Baton Rouge is considerably greater via Simpson than by way of Natchez, Mississippi.The accident occurred on U.S. Highway 190 approximately 25 miles west of Johnson's destination, Baton Rouge, Louisiana.

'Johnson's regular work week extends from 8:30 A.M., until 5:00 P.M. each weekday and from 8:30 A.M., to 12:00 noon on Saturday.From noon Saturday until 8:30 A.M., Monday morning he was off duty although he was occasionally required to work on Sunday in connection with parish fairs.He had no work to perform on the Sunday in question and is not required to account to his employer for his use of his time off or his actions or whereabouts during his leisure hours.

'Learned counsel for plaintiff maintains that since Johnson was paid mileage for the trip in question he was acting within the scope and during the course of his employment when he left Simpson for Baton Rouge although counsel concedes the journey from Johnson's home in Winnsboro to Simpson was a deviation from the normal route and therefore this portion of the trip did not place Johnson within the scope of his employment.Distinguished counsel is so confident of his position in this regard that he deemed it unnecessary to support same by citation of authority.

'Esteemed counsel for defendants contend the factual situation presented is merely that of an employee on his way to work and since Johnson was off duty at the time with no work to perform for his employer on the Sunday in question, he was not within the scope of his employment at the time of the accident.Counsel for defendants further contend Johnson did not come within the scope of his employer's business until he reported for the meeting on the L.S.U. campus at 8:30 A.M., on the morning following the accident.Illustrious counsel for defendants have cited several cases holding that as a general rule an employee going to and from his place of employment is not considered to be acting within the scope of his employment.Among the more recent decisions cited by counsel for defendants are Herbert L. Harding v. Nick J. Christiana(La.App.)103 So. (2d) 301;Alexis Romero v. Lee H. Hogue et al.(La.App.)77 So. (2d) 74andBoyce v. Greer, et al.(La.App.)15 So. (2d) 404.

'The foregoing cases(and other cases cited therein) hold that as a general rule an employee in going to and from his place of employment is not considered as acting within the scope and during the course of his employment to such an extent as to render his employer liable to third persons for his negligent acts unless the trip to or from work is required by the employer to be made in an automobile or where the use of the vehicle may be...