Donovan v. Standard Oil Co. of Louisiana

• Decision Date: 04 April 1940
• Docket Number: 6072.
• Citation: 197 So. 320
• Court: Court of Appeal of Louisiana — District of US
• Parties: DONOVAN ET UX. v. STANDARD OIL CO. OF LOUISIANA ET AL.

197 So. 320

DONOVAN ET UX. v. STANDARD OIL CO. OF LOUISIANA ET AL.

No. 6072.

Court of Appeal of Louisiana, Second Circuit.

April 4, 1940

Rehearing Denied May 3, 1940.

Writ of Certiorari Denied July 18, 1940.

Appeal from Second Judicial District Court, Parish of Claiborne; J Rush Wimberly, Judge.

Action by Joseph A. Donovan and wife against the Standard Oil Company of Louisiana and others to recover for injuries suffered in automobile accident. From a judgment for each plaintiff against all defendants in solido, the defendants appeal suspensively and the plaintiffs prayed in Court of Appeal that the awards in their favor be increased.

Reversed in part, affirmed in part, and amended in part and as amended, affirmed.

Blanchard, Goldstein, Walker & O'Quin, of Shreveport, for appellants.

Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, for appellees.

TALIAFERRO, Judge.

Plaintiffs, Joseph A. Donovan and wife, were injured when the Ford pick-up truck in which they were riding overturned on Highway No. 79, approximately one mile south of Homer, Louisiana. They sue to recover damages for injuries, for loss of time, etc.

The truck at the time of the accident was being driven by a negro boy by the name of Bricely Grigsby, an employee of H. H. Jones, the operator of a service station in the town of Homer.

On the theory that both Jones and Grigsby were agents of the Standard Oil Company of Louisiana, hereinafter referred to as the oil company, and that at time of the accident Grigsby was acting within the scope of his and Jones' employment, the oil company and the carrier of its public liability insurance, the Fidelity and Casualty Company of New York, were impleaded as defendants.

Plaintiffs were riding in their own car and when five miles south of Homer on said highway, one of the tires gave way and a flat developed. They caught a ride to Homer and stopped at Jones' station and purchased a new tire. At the time, Jones was at his home for lunch. Bill Taylor, an employee, was in charge of the station and delivered the tire.

We are convinced from the testimony bearing thereon that as a concomitant of the sale, Taylor agreed to transport plaintiffs back to their own car and mount the tire. There is some dispute on the point, however.

The Jones station had no vehicle on hand to make said trip. The oil company's bulk plant adjoins the station. C. D. Edmonds is manager thereof. Taylor procured Edmonds' consent to use his truck to make the trip. The negro boy was directed by Taylor to do the driving. The accident followed.

The negligence charged to the oil company and its alleged agents is that Jones, as was his duty, did not provide plaintiffs with an experienced and competent driver; that he instructed the driver to make the trip without first ascertaining or attempting to ascertain whether said driver was competent; that said driver attempted to make a forty-five (45° ) degree left curve while driving at a dangerous and reckless rate of speed, lost control of the vehicle and it turned over.

By amended petition, H. H. Jones and C. D. Edmonds were made defendants. The gravamen of the amendment reads:

" That, in the alternative, and only in the event that this Honorable Court should decide that there is no liability on the part of the Standard Oil Company of Louisiana, then petitioners allege that the truck involved in the accident described in the original petition herein was furnished by its owner, The Standard Oil Company of Louisiana, to Mr. C. D. Edmonds, a duly authorized representative of the said company, for his own use; that the said C. D. Edmonds authorized its use by Mr. H. H. Jones for the purpose of returning petitioners to their own automobile, as set forth in the original petition herein; that if the driver of the said truck was not an agent of The Standard Oil Company of Louisiana, acting within the scope and course of his employment, then he was a duly authorized agent of Messrs. C. D. Edmonds and H. H. Jones, acting within the scope and course of his employment; and, if the Standard Oil Company of Louisiana is not liable as a result of this accident, then, in that event, Messrs. H. H. Jones and C. D. Edmonds are liable in solido to petitioners for the amounts set forth in the original petition herein."

Judgment against defendants in solido is prayed for.

All defendants, after admitting that the accident happened at the time and place alleged and that the truck was owned by the oil company, denied all other essential allegations of the petitions. In the alternative, the contributory negligence of plaintiffs is pleaded as a bar to their recovery, such negligence being that they failed to maintain a proper lookout for their own safety and failed to protest against the manner of Grigsby's driving, but, on the contrary, acquiesced therein.

There was judgment for each plaintiff against all defendants in solido and they appealed suspensively.

Plaintiffs, in this court, ask that the awards in their favor be materially increased. Appellants argue that the awards are excessive.

Defendants, in brief, concede Grigsby's negligence as the primary cause of the accident, but persist in the plea of contributory negligence. They carried the burden of proving this special plea. We do not think they have discharged this burden.

A speed of forty-five (45) miles per hour on a paved highway is not invariably excessive under the law, nor is it negligence per se. Traffic and physical conditions on the highway, at all times, should be considered by motorists in determining a prudent rate of speed at which to drive. In the present case the speed of the truck, admittedly not over forty-five (45) miles per hour, convicts the driver of negligence only in maintaining it when trying to take the sharp curve. It should have been obvious to him that a reduced speed was indispensable to safe travel on this curve.

Mrs. Donovan testified, in effect, that she protested to the negro driver that he was driving too fast. Mr. Donovan admits that he made no such complaint, but corroborates his wife as to her protest. They evidently had not left the station more than two or three minutes before the accident happened. There was little time to protest or do anything else to induce this boy to drive more carefully. The curve was probably reached before any reaction to the protest could occur. The boy denies that any protest whatever was made to him about the manner of his driving, and adds that Mr. Donovan said to him that he was in a hurry to reach Haynesville by noon. However, he does not say that either of the Donovans asked him to drive as fast as he did. The facts and circumstances being as we find them, negative the charge that plaintiffs acquiesced in this boy's negligent operation of the truck at and on the curve.

The oil company owns the service station operated by Jones. It was leased to him, and as rental, he paid one cent on each gallon of gasoline sold therein. A condition of the lease is that Jones could not handle for sale any products in competition with those manufactured and/or sold by the oil company.

Plaintiffs' contention is that Jones was simply a sales agent for the oil company on a commission basis and not an independent contractor (lessee).

Jones did not carry motor vehicle tires in stock. When a customer applied to purchase one, he would go to the oil company's bulk plant and purchase a tire of the kind and quality desired, bring it into his own station and deliver it to the customer at retail price. He would either pay cash for the tire or it would be charged to him. This course was followed in Mr. Donovan's case. The tire was not then paid for. It was carried into the station and the sale to Donovan closed. Taylor then returned to the plant to procure Edmonds' consent to use the truck to transport Donovan and wife back to their car. When asking for the truck's use, Taylor stated he wished to deliver a tire and fix a flat out on the road. Edmonds thought Taylor would drive the vehicle. He did not know that Grigsby had done so until after the accident.

All defendants admit in their answers that the truck belonged to the oil company, but Mr. Edmonds testified positively and without objection that it was his personal property and that insurance thereon was effected through the oil company. There is no testimony to contradict his on this score. However, the question of ownership, as we appreciate the legal aspect of matters, is not material.

Neither the oil company nor Edmonds was under any obligation to transport plaintiffs and the tire to their disabled car five miles away. After the tire was delivered to Taylor for Jones' account, their interest in it ceased. Edmonds had no knowledge of the identity of the purchaser of the tire nor the conditions of its sale, nor did he know, as far as the record discloses, that his truck would be used in delivering that particular tire.

In view of the above related facts, it is certain that no liability for the results of the accident rests upon Edmonds nor the oil company because of the part Edmonds had in the related antecedent facts.

The rule uniformly prevails where there is no statutory modification of it, that from the bare fact of loaning a motor vehicle by its owner to another, the relation of principal and agent is not superinduced; and, therefore, the loaning owner is not exposed to liability for damages to third persons injured while riding in the loaned car because of the negligence of its borrower or of his agent or employee. The rule is different if the borrower, to the loaning owner's knowledge, is intoxicated or otherwise incompetent to drive. Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, Vol. 5,...