Cusimano v. A. S. Spiess Sales Co.

• Decision Date: 02 April 1923
• Docket Number: 24599
• Citation: Cusimano v. A. S. Spiess Sales Co., 153 La. 551, 96 So. 118 (La. 1923)
• Court: Louisiana Supreme Court
• Parties: CUSIMANO v. A. S. SPIESS SALES CO

96 So. 118

153 La. 551

CUSIMANO v. A. S. SPIESS SALES CO

No. 24599

Supreme Court of Louisiana

April 2, 1923

Appeal from Civil District Court, Parish of Orleans; H. C. Cage Judge.

Action by Nicholas Cusimano against the A. S. Spiess Sales Company in which plaintiff's wife made herself a party after plaintiff's death. From a judgment for plaintiff defendant appeals.

Amended and affirmed.

Edward Rightor, John D. Nix, Jr., and W. Winn Wright, all of New Orleans, for appellant.

Sanders, Baldwin, Viosca & Haspel and William H. Byrnes, Jr., all of New Orleans, for appellee.

OPINION

ST. PAUL, J.

Plaintiff sued the defendant A. S. Spiess, doing business as A. S. Spiess Sales Company, for $ 20,125 as damages for personal injuries inflicted by an automobile belonging to said defendant and operated by a chauffeur in defendant's employ.

The negligence of the chauffeur is not disputed. He was running defendant's delivery truck at an excessive rate of speed, and, in order to avoid a collision with another vehicle in front of him, turned aside and crashed into the front of plaintiff's store, where plaintiff was then standing, knocking plaintiff down and injuring him severely.

I.

The defense is that at the time of the occurrence the chauffeur was not engaged about defendant's business, but in purposes of his own, and there is some evidence by defendant's brother, who acted as shipping clerk, that, "as far as he can remember," the chauffeur had only four stops to make, and none of them would have taken him to the place where the accident occurred. On further examination he became more positive that there were but four stops to be made. The policeman who arrived at the scene immediately after the accident testified that the chauffeur told him that he "was going up town to deliver some goods, and went home to get something, and had to hurry back, as he lost time." Plaintiff's son testified that the chauffeur told him, "I just come from delivering from back of town," but does not remember exactly where. At any rate it appears that the chauffeur was then on his way back either to continue his deliveries or to return to defendant's store.

The evidence is therefore not conclusive that the chauffeur was not engaged in his work of making deliveries, but, even conceding that the chauffeur had in fact turned aside from his master's business to go to his own home, or elsewhere, for purposes of his own, yet at the time of the accident he was returning to his occupation, and was therefore engaged about his master's business.

II.

It is notevery deviation from the direct line of his duties on the part of an employee that constitutes a turning aside from his master's business. Duffy. v. Hickey, 151 La. 274, 91 So. 733. Nor does the master's liability cease merely because the servant is acting contrary to, or even in defiance of, express instructions from his master, Winston v. Foster, 5 Rob. 113.But the servant must have abandoned and turned aside completely from his business, to engage in some purpose wholly his own, before the master ceases to be liable for his acts.

And even though a servant may have turned aside from the master's business, yet the liability of the master reattaches as soon as the servant reassumes the business of his master.

And the authorities hold that, when the servant, having completed the purpose for which he turned aside, is returning to resume his duties, he is, whilst so returning, engaged in the business of his master.

In Black v. Rock Island, A. & L. Ry. Co., 125 La. 101, 105, 51 So. 82, 83, 26 L.R.A. (N.S.) 166, this court said:

"There is really no positive testimony in the record as to the purpose of Fausnacht and Earnest in moving the train (as, for convenience, we shall call the engine and car) by which plaintiff was struck, out of the depot, but the inference is that it was done merely by way of celebrating the occasion, and with that view, of running over and exploding certain torpedoes which had been laid on the track; and that apparently was accomplished as the train passed down. When, however, plaintiff was injured, defendant's employees were engaged in taking the train back to the depot, where it belonged, and the basis upon which the learned counsel rest their argument that defendants cannot be held liable because, when the injury was inflicted upon plaintiff, their employees, to whose negligence it was attributed, were not engaged in the discharge of any service to them, or within the scope of their employment, disappears entirely; for, conceding that, in taking the train out of the depot, merely for their own amusement, the men whom defendants had placed in charge of it were rendering no service to defendants and were doing nothing they were employed to do. it can hardly be denied that their duty to defendants as custodians of the property required that it should be returned to the place from which they had taken it." (Italics ours.)

It is true that the court said this was perhaps a narrow view of the case, though no narrower than that which would seek to release a master whose servant had turned aside momentarily for some purpose nominally his own, and then proceed to decide the case upon the "broader ground" that defendants, as owners of a public franchise, were bound to see that that franchise was used with due regard for public safety. But the fact is that the first ground of decision was clearly pertinent to the case and entirely applicable; and there is nothing in the rest of the opinion to indicate that those views were to be considered unsound. We think they were sound.

In Barmore v. Vicksburg, S. & P. Ry. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 595, it was held, quoting for convenience the syllabus in 3 Ann. Cas. 595:

"The rule that, where a servant has made a temporary departure from the...