Daigle v. Crescent City Garage, Inc.

• Decision Date: 02 May 1938
• Docket Number: 16801
• Court: Court of Appeal of Louisiana — District of US
• Parties: DAIGLE v. CRESCENT CITY GARAGE, Inc., et al

180 So. 831

DAIGLE v. CRESCENT CITY GARAGE, Inc., et al

No. 16801

Court of Appeal of Louisiana, Orleans.

May 2, 1938

Rehearing denied May 30, 1938.

John May, of New Orleans, for appellants.

OPINION

McCALEB Judge.

The plaintiff, appearing individually and on behalf of her three minor children, brought this suit to recover compensation against the Crescent City Garage, Inc., and its insurance carrier, Travelers Insurance Company, for the death of her husband, Maurice Charles Leonard, an automobile mechanic allegedly in the employ of the first named defendant, who was fatally injured while engaged in repairing a truck.

The defense to the action is that the deceased, at the time he received his injuries, was not acting within the course or scope of his employment but, on the contrary was engaged upon a private mission and was performing work for one of his own customers.

There was judgment below in favor of the plaintiff, awarding her compensation against the defendants in solido for 300 weeks at $ 10.72 per week. The defendants have appealed, and the plaintiff has, by way of answer, requested an increase in the award.

The Crescent City Garage, Inc., is a Louisiana corporation operating in the city of New Orleans where it conducts a general garage business for the storage, washing, polishing, cleaning, enameling, and lubricating of automobiles. In connection with the main enterprise, it also sells tires, batteries, gasoline, oil, and motor accessories and performs automobile repair work.

From 1921 to 1925, the repair shop of the garage was operated by one Dunn as a distinct and private business of his own, but thereafter the defendant, recognizing the advisability of offering a more responsible and complete line of service to its patrons, employed M. C. Leonard as its mechanic and placed him in full charge of its repair department. The arrangement between the garage and Leonard was that it would supply the workshop, materials, etc., for the repair of automobiles belonging to its patrons; that Leonard would perform the mechanical work, and that, in recompense for his services, he would receive one half of all of the profits of the operations. While it does not clearly appear that there was any definite understanding as to Leonard's hours of work, it may be justifiably inferred from the evidence that he was expected to be on hand during each day to perform such labor as might be needed by the garage's customers and that the garage had the right to supervise and control the work done by him.

On the morning of the fatal accident, Leonard had been advised, by telephone call to the garage, that one of the trucks of L. Frank & Company, produce dealers of New Orleans, had broken down at the corner of Josephine and Freret streets and he was summoned for the purpose of repairing it. While he was working on this truck, it caught on fire and he received severe burns which later caused his death.

We are told by counsel for the defendants that the trial judge, after the case was submitted to him for decision, was uncertain as to whether Leonard was an employee of the garage or whether he was in partnership with it insofar as the automobile repair business was concerned. Counsel further states that because of the doubt expressed by our brother below, he has raised in this court the question of the legal relationship of the parties. The defendants judicially admitted in their answer that Leonard was an employee of the garage, but counsel maintains that, notwithstanding this, he is entitled to judgment if, in truth, the evidence shows that a copartnership existed. We do not think so. It is too well settled to require the citation of authority that parties litigant are bound by their judicial admissions. Aside from this, we see nothing in the agreement which would persuade us to declare that it was a contract of copartnership. There is no reason to suppose that Leonard was to bear any part of the loss of the venture. He was merely an automobile mechanic. The garage was engaged in the business of repairing automobiles and, instead of paying him a stipulated wage, it elected to base his compensation upon a division of profit. The sharing of profits is the only feature of the agreement which bears any resemblance to a copartnership and this alone is insufficient to create such a contract. See Collom v. Bruning, 49 La.Ann. 1257, 22 So. 744, and Boutte v. Roland & Son et al., 15 La.App. 530, 132 So. 398.

Being, then, of the opinion that Leonard was the employee of the garage, we approach the more serious question presented, i. e., whether he was engaged in that employment at the time of the accident.

The defendants state a most unusual situation existing between Leonard and the garage. They say that, at the time he was employed, it was understood that his duties would not be confined to customers of the garage and if he was able to obtain patrons of his own, he would be entitled to perform whatever services they desired during his working hours and retain the entire profit of such pursuits for himself. In other words, it is claimed that Leonard was only a part time employee; that he was engaged in two businesses, one as servant of the garage and another as an independent contractor of his own customers; that L. Frank & Company, whose truck was involved in the accident, had employed Leonard individually; and that the garage had no right to receive any portion of the compensation he would have received for the repair work he was doing at the time he was injured.

In substantiation of this defense, the defendants rely upon the testimony of the secretary and general manager of the garage Mr. Charles G. Alba, and on certain account books kept by Leonard in his own handwriting. Mr. Alba stated, in substance, that, at the time Leonard was employed, it was understood that he should do all the repair work of the patrons of the garage and that he was also permitted to retain for himself whatever business his individual customers would give him. The arrangement, as explained by the witness, was that all persons coming into the garage to have their automobiles serviced or stored would automatically become the garage's customers, but that any persons particularly recommended to Leonard for repair work and who specifically requested his services would be considered to be his customers. He further says that the garage's facilities, including its credit,...