Friday v. Mutz
| Decision Date | 14 February 1986 |
| Docket Number | No. CA-3758,CA-3758 |
| Parties | Irma Friday, wife of/and Theodore FRIDAY v. Timothy L. MUTZ, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Jacqueline Mae Goldberg, New Orleans, for plaintiffs-appellants, Irma Friday, wife of/and Theodore Friday.
Thomas A. Lussen, Jr., Slidell, for defendant-appellee, Timothy L. Mutz.
Before CIACCIO, WARD and WILLIAMS, JJ.
On the afternoon of August 23, 1982 a vehicle-carrier truck driven by Gerard Hellmers ran into the rear of a van stopped at a traffic light in the city of New Orleans. The driver of the van, Mrs. Irma Williams Friday, sustained injuries and her van was damaged. Mrs. Friday sued Hellmers and Timothy L. Mutz who is the registered owner of the truck. After a judge trial, judgment was granted against Hellmers for a total of $17,098.60 in general damages, medical expenses, and lost wages, plus costs. In his reasons for judgment, the Trial Judge stated that he believed Mrs. Friday had general damages of $25,000.00, but due to Hellmers' poverty and inability to pay, he was holding him liable for general damages of only $12,500.00. It is undisputed that Timothy Mutz was the registered owner of the truck at the time of the accident, but the Trial Judge found that the truck was purchased and registered in Mutz's name only as an accommodation to Hellmers who was unable to secure financing due to his poor credit rating. Accordingly, the judge dismissed Mrs. Friday's claim against Mutz.
Only Mrs. Friday appeals the judgment. She contends the Trial Judge erred in: 1) dismissing her claim against Mutz on the finding that he was not the actual owner of the truck; 2) finding that Mutz was not required to carry minimum liability insurance on the truck; 3) refusing to allow amendment of the petition during trial to plead the theory of respondeat superior; 4) assessing general damages of only $25,000.00; and 5) considering Hellmers' inability to pay in awarding damages. Because the Louisiana Supreme Court has recently held that it is improper to consider a defendant's inability to pay, we vacate the portion of the judgment awarding $12,500.00 in general damages. We award general damages of $25,000.00, and in all other respects, affirm the judgment.
We need not consider the merits of Mrs. Friday's first assignment of error because even if we were to find Timothy Mutz the actual owner of the truck Hellmers was driving, the judgment would not be changed. The owner of a motor vehicle is not personally liable to a tort victim for injuries occurring while his vehicle is under the control of another person unless it is shown that the driver was on a mission for the owner or that he was an agent or an employee of the owner or unless the owner was himself negligent in allowing the driver to use the vehicle. Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805 (1968). The evidence in the record does not support a claim of personal liability against Mutz under any of these theories. The record only shows that, under cross-examination, Hellmers stated that he could not remember whether he was towing a car for Mutz or for someone else at the time of the accident. Mutz and Hellmers testified extensively about their work relationship, and that testimony does not prove that Hellmers was employed by Mutz. Mrs. Friday presented no evidence which showed that Mutz, even if owner of the truck, was negligent in allowing Hellmers to drive it. Accordingly, the Trial Judge correctly dismissed Mrs. Friday's claim that Mutz was liable as owner of the truck.
The second assignment of error is predicated on Mrs. Friday's theory that Mutz, as the registered owner, was required to procure liability insurance and therefore is liable for the minimum amount of insurance required by law. The Trial Judge stated that if Mutz were the "actual owner", he would be liable to the extent of the statutory duty to insure, $5,000.00. But, because the Trial Judge found that Mutz was not the owner of the truck, he found that he was not required to carry minimum liability insurance as required of "registered owners" by La.R.S. 32:861(A).
We do not believe that Louisiana's Compulsory...
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