Fackrell v. Gulley

• Decision Date: 15 March 1971
• Docket Number: No. 8254,8254
• Citation: Fackrell v. Gulley, 246 So.2d 368 (La. App. 1971)
• Parties: Gerald E. FACKRELL et al. v. Claude GULLEY, d/b/a C. G. Mall Transport, et al.
• Court: Court of Appeal of Louisiana

Page 368

246 So.2d 368

Gerald E. FACKRELL et al. v. Claude GULLEY, d/b/a C. G. Mall Transport, et al.

No. 8254.

Court of Appeal of Louisiana, First Circuit.

March 15, 1971.

Rehearing Denied April 19, 1971.

Daniel R. Atkinson, of Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for appellants.

John L. Avant, of Dodd, Hirsch, Barker, Avant & Wall, Baton Rouge, for appellees.

Before LANDRY, ELLIS and BLANCHE, JJ.

BLANCHE, Judge.

Plaintiffs-appellees, Gerald E. Fackrell, Mrs. Marie B. Fackrell and Mrs. Louise B. Broussard, brought this suit against Claude Gulley, d/b/a C. G. Mail Transport, Charles L. Williams and Allstate Insurance Company, defendants-appellants, for damages arising out of an automobile collision. On or about July 20, 1968, at approximately 4:30 o'clock P.M. plaintiffs were on the Plank service road leading to a shopping center in which is located Gibson's No. 1 Discount Store. On reaching the intersection of the service road and Oaklon Street, said intersecting streets forming a 'T' intersection, a two and a half ton International truck operated by Charles Williams and owned by Claude Gulley ran a stop sign, which directed traffic proceeding on Oaklon Street to stop before entering into the service road, and collided with a 1966 Chevrolet operated by Mrs. Marie B. Fackrell. Mrs. Broussard was a passenger in the right, front seat of the Chevrolet.

The case was tried before a jury which awarded damages in favor of Mrs. Marie B. Fackrell in the sum of $4,000 and in favor of Mrs. Louise B. Broussard in the sum of $12,500 and against Gulley and Allstate. Issue as to the defendant Williams was never joined. The medical and other special expenses were stipulated by and between counsel. The jury found that Williams, the driver of the truck, was negligent and that such negligence was the proximate cause of the accident sued upon, and on appeal appellants concede the negligence of Williams. At trial plaintiffs-appellees sought to hold the defendant Gulley responsible under the doctrine of respondeat superior and also sought to hold the insurer of Mr. Gulley, Allstate Insurance Company, under the theory that Gulley's employee Williams was using the vehicle with the permission of his employer, that such use was within the scope of the permission granted and that, therefore, Williams as such was an insured under the policy issued to Gulley. Special findings were requested of the jury and the jury found that (1) Williams was acting within the course and scope of his employment at the time of the accident and (2) Williams was using the truck with the permission of his employer and such use was within the scope of such permission. Thus, the jury supported the plaintiffs' theories of the case, and defendants-appellants, Gulley and Allstate, on appeal assign as error the aforesaid special findings of the jury, contending that the jury abused its discretion in granting the awards stated above. We affirm.

The evidence shows that Mr. Gulley had engaged in a contract with the federal government to haul mail from Baton Rouge to Alexandria and return. In this connection, he employed Williams to drive one of his trucks to haul the mail, such hauling being done on Monday through Friday of the week. After each haul was completed by Williams and on weekends, the truck owned by Gulley was to be parked at a Fina Service Station on the Scenic Highway within the City of Baton Rouge. Williams retained possession of the keys to the vehicle and was virtually unsupervised as to the manner in which he performed his duties. In addition, Gulley had another contract with a pharmaceutical house in Shreveport, Louisiana, whereby he was to deliver certain drugs from the drug firm in Shreveport to their customers in Baton Rouge. These drugs were brought to Baton Rouge by a Mr. Salley who was also employed by Gulley to haul mail on a route from Shreveport to New Orleans and return. Mr. Salley also worked on weekends at the Fina Service Station, and after his arrival in Baton Rouge subsequent to delivering the mail, the drugs would customarily be transferred from the truck assigned to him to Williams' truck in order that Williams could make delivery of the drugs on the following Saturday morning. On the date of the accident Williams used Salley's truck for the purpose of making the deliveries instead of using the truck assigned to him. On that date only one delivery was scheduled to be made and that was to Gibson's No. 1 which was located in the shopping center at the intersection of the Plank Road and the Airline Highway not more than a block and a half from the scene of the accident. According to Mr. Gulley, the delivery was supposed to have been made by Williams in the morning hours, although the specific time of the delivery was never established. After making the deliveries of drugs, it was Williams' duty to return his vehicle to the Fina Service Station which was to serve as a terminal for both of Gulley's trucks. When Gulley's trucks were not in use in his business, Mr. Gulley's instructions were to the effect that they were to be parked at the Fina Service Station where they were to be servied until used again in Gulley's business.

The accident occurred at 4:30 o'clock P.M. under circumstances described by Mr. L. H. Bennett, a witness for the defendant. Mr. Bennett testified that he and his son were traveling north on the Plank Road. At a point on the Plank Road just north of the traffic signal which controls traffic eventually leading into the service road which must be utilized to go to Gibson's Store No. 1, he first noticed the truck driven by Williams. At that time Williams was attempting to pass a wrecker and in so doing ran into or 'nudged' the car being towed by the wrecker. Upon observing this, Bennett ordered his son who was driving the car to give chase in order that he might get the license number so as to establish the identity of the truck. The chase led them north away from Gibson's Store No. 1, then to the east through a subdivision known as Zion City, then south, and finally west onto Oaklon to the point where Williams ran the stop sign on the service road and collided with the plaintiffs.

Thus, it is argued by appellants that Williams was not in the course and scope of his employment because when first observed by Bennett headed north away from Gibson's Store No. 1 and thereafter he was attempting to avoid apprehension for his illegal driving activities on the Plank Road at the time of the accident. It is further argued that he was not operating the vehicle within the scope of permission granted by Claude Gulley, the named insured. This argument is pertinent to the determination of whether Williams was an insured under the omnibus clause of the Allstate policy which provides that the actual use of the vehicle must be within the scope of the permission of the named insured. In support of this contention it is submitted that according to his instructions Williams was to deliver the drugs before noon on the day of the accident and that, accordingly, he must have been using the vehicle for his own purposes at the time of the accident inasmuch as he only had one delivery to make.

The law of Louisiana is clear that where an employee is driving his employer's vehicle at the time of the accident he is presumed to be acting within the course and scope of his employment at the time of such accident, and his employer will be responsible for any damages sustained by third persons caused by the negligence of his employee. Cofield v. Burgdorf, 238 La. 297, 115 So.2d 357 (1959), Longoria v. Progressive Mutual Insurance Company, 204 So.2d 93 (La.App.2nd Cir. 1967), Coon v. Monroe Scrap Material Company, 191 So. 607 (La.App.2nd Cir. 1939), Simms v. Lawrence Brothers, 72 So.2d 538 (La.App.2nd Cir. 1954), and Raney v. McDaniel, 165 So.2d 593 (La .App.1st Cir. 1964), which latter case cites Mabry v. Fidelity & Casualty Company of New York, 155 So.2d 44 (La.App.2nd Cir. 1963). The presumption is rebuttable by the employer, but the foregoing cases point out that only strong and convincing evidence will be sufficient to overcome such presumption. Thus, the principal question for decision is whether the evidence introduced by defendants-appellants at the trial was sufficient to overcome the presumption relied upon by appellees.

In resolving this issue we find no basis for substantial disagreement with the jury. The jury had evidence that Williams, an employee of Gulley's, was to make a delivery of drugs to Gibson's Store No. 1; that the delivery was, in fact, made; that while the exact time of the delivery was never established, the accident occurred just a short distance from Gibson's and in the vicinity of where he should have been if on his employer's business; and that shortly before the accident he was found proceeding north on Plank Road at a point just north of the service road leading to the place where he was to have made that delivery. The evidence that Williams was seen proceeding north on the Plank Road does not, in our opinion, overcome the presumption that he was on his employer's business at the time of the accident. It is argued by appellants that such a route leads away from Gibson's, and, on the other hand, appellees argue that such a route could have conveniently been utilized by him to return the truck to the Fina Service Station, though admittedly it was not the most direct route. The other evidence offered by defendants that Williams was attempting to escape detection for his improper driving on Plank Road is the strongest evidence of a deviation from his master's...