Foundation Co. v. Henderson
| Decision Date | 03 April 1920 |
| Docket Number | 3440. |
| Citation | 264 F. 483 |
| Parties | FOUNDATION CO. v. HENDERSON. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. W Wall and James C. Henriques, both of New Orleans, La., for plaintiff in error.
William H. Byrnes, Jr., and L. De Poorter, both of New Orleans, La for defendant in error.
Before WALKER, Circuit Judge, and CALL and HUTCHESON, District Judges.
Plaintiff in error, defendant below, cast in the lower court by the verdict of the jury and the judgment thereon, brings this writ seeking a reversal.
The suit is one for damages caused to the plaintiff by being struck by an automobile on the streets of the city of New Orleans. Defendant's contention that, irrespective of the question of negligence, plaintiff could not recover, because he had failed to prove defendant's responsibility for such negligence, was denied by the trial court, which not only declined to submit all of defendant's charges on that issue, but instructed the jury:
'There is no doubt, if the automobile was operated in a negligent manner by the chauffeur, that the Foundation Company would be liable in this case.'
Plaintiff in error presents ten assignments in his brief. The second assignment, challenging the action of the court in refusing to strike out paragraphs 3 and 4 of the petition is not before us for review, since there was no proper exception reserved to the action of the court in that matter.
The third assignment, challenging error in the admission of the testimony of Ray, presents no reversible error, because, if erroneous, the same matters were proven without objection by other witnesses.
The fourteenth assignment seeks to challenge the action of the court in overruling motion for new trial in regard to excessive verdict. This assignment presents nothing for review here.
Plaintiff in error, however, mainly relies upon the first and fourth assignments of error, presenting the issue of no cause of action, and the fifth, sixth, seventh, tenth, and eleventh, complaining of the refusal of the court to give the requested charges presenting the issue of whether or not the car was owned by the Foundation Company, and was being used by an employe or officer of that company, upon its business at the time of the injury.
The matters complained of in these assignments were properly brought to the attention of the trial court, and are properly presented here, and it is evident that if the question of the ownership of the machine, or whether or not the chauffeur was acting on the master's business and with his authority, was either determined as a matter of law for the defendant, or should have been submitted as an issue of fact to the jury, the judgment must be reversed, while it is equally evident that it must be affirmed, if the state of the evidence entitled the court to instruct the jury as he did.
The contentions of defendant, briefly stated, are: (1) That the evidence affirmatively establishes that the automobile was not owned, and its operatives were not employed, by the Foundation Company, but by the government of the republic of France; and in addition (2) that there was no proof that the automobile was being used in the business of the Foundation Company, or that the driver, Parker, at the time of the accident, was acting within the scope of his employment.
The facts on the issue of ownership, employment, and use of the car at the time of the accident are these:
The defendant, under a cost plus contract with the government of the republic of France to construct shipyards and to build ships, established a plant and maintained an organization in the city of New Orleans. The contract provided that the French government would pay the entire cost of the ships, and, in addition, would pay the contractor a percentage as compensation for his services, and it was agreed that the cost of the ships should include all expenses, of whatever nature, incurred by the contractor or the French government in connection with the contract. Among the expenses were salaries of superintendent and all other employes of the local office, all tools, supplies, etc. The contractor was to make up weekly pay rolls and draw on Messrs. J. P. Morgan & Co. for the amount, and make up a monthly statement of expenses, for which they were also to draw.
Among the supplies purchased by the Foundation Company for the French government was the Cadillac automobile, which figures in this accident. Among the employes of the Foundation Company were Superintendent Galbreath and the chauffeur, Allen Parker. As to these the testimony shows without dispute that Galbreath was superintendent, and in full charge of the operations of the Foundation Company, and that Allen Parker was the regular chauffeur, whose business it was to drive this Cadillac machine.
The construction of the contract, and the evidence connected with its carrying on, establishes in the same undisputed way that the Foundation Company was an independent contractor, with full charge and control of the work and its direction, and that this automobile, along with the other supplies and properties in its charge, was under the complete direction and control of the Foundation Company in connection with the carrying on of the business of said company and the superintending and directing of the ship construction.
The injury occurred while the machine was being used in the following manner: On Sunday evening, August 11, 1918, Galbreath, the superintendent of the Foundation Company, left the premises of that company in this car, its regular chauffeur, Allen Parker, driving, and proceeded to the St. Charles Hotel, in the city of New Orleans. The driver, having been instructed to return for him at 10 o'clock, took the car to his own house, and thereafter, responding to a telephone message there received, went to the St. Charles Hotel, and from there to Galatoire's Restaurant, not finding Mr. Galbreath at either place. While driving up Baronne street, at about La Fayette street he struck the plaintiff. Being badly frightened, he then went to his own house, and later returned to Galatoire's, picked up Mr. Galbreath, and took him back to the premises of the Foundation Company.
Under these facts, the ownership of the car by the Foundation Company is immaterial. The car was under its control and subject to its direction, and if it is established by the proof that the car was being operated by its employes on its business, defendant's contentions must be overruled.
We agree with plaintiff in error that it is the duty of a plaintiff in a suit of this kind to establish by the evidence that the car was being operated by an employe of the...
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