Goff v. Sinclair Refining Co.

• Decision Date: 29 June 1935
• Docket Number: 5063
• Court: Court of Appeal of Louisiana — District of US
• Parties: GOFF v. SINCLAIR REFINING CO. et al

162 So. 452

GOFF v. SINCLAIR REFINING CO. et al

No. 5063

Court of Appeal of Louisiana, Second Circuit.

June 29, 1935

Hudson, Potts & Bernstein, of Monroe, for appellant.

Theus Grisham, Davis & Leigh, of Monroe, for appellees Sinclair Refining Co. and Employers' Liability Ins. Co.

O. A Easterling, of Monroe, for appellee F. T. Harkness.

OPINION

TALIAFERRO Judge.

Plaintiff brings this suit in tort for damages against George Fellows, F. T. Harkness, Sinclair Refining Company, and the Employers Liability Corporation, Limited, of London, England. Harkness and Fellows were made defendants on the theory that they were servants, agents, or employees of the Sinclair Refining Company, for whose negligence as such it was responsible, and the assurance corporation was joined as defendant, because it was thought and alleged that it had issued a contract of public liability and property damage insurance to the Sinclair Refining Company on the truck involved in the hereinafter described accident. It developed on trial of the case that no such insurance policy had issued, and the suit as to this defendant was dismissed on an exception of no cause and no right of action filed by it. There is now no complaint against this ruling. We shall hereinafter refer to the Sinclair Refining Company as the oil company.

For a cause of action, plaintiff alleges that said Harkness was, when the accident out of which plaintiff sustained injury and damage occurred, employed by the oil company to haul, deliver, market, and sell gas, oil, and other related products for and on behalf of said company, and especially was he employed to supply these products to the Sinclair owned, operated, and/or leased filling stations; and that in the discharge of said duties of his employment, Harkness was under the control of, supervised and directed by, the oil company; that he was paid a salary or commission based upon the quality and quantity of products sold by him for his employer; that the products until sold were the property of the company; that Harkness paid George Fellows for his services out of the salary and commission received by him from the company; and that Harkness and the company directed and controlled the work of Fellows.

Plaintiff further alleges:

"6. (3)5C that on or about May 11th, 1932, at about 3:00 o'clock P. M., your petitioner was driving a Ford Roadster, that he was proceeding in a westerly direction along the Dixie-Overland Highway, which is a paved highway, and about eighteen feet in width. About six miles west of the City of West Monroe, in Ouachita Parish, Louisiana, there is a curve and an incline or hill just a short distance east of the point of the hereinafter alleged accident.

"7. Your petitioner avers that the said George Fellows was driving a Chevrolet truck, equipped with tanks owned by Sinclair Refining Company actively engaged in the business of the said Sinclair Refining Company, and Harkness and under their immediate instruction, and with their knowledge, consent and by permission, and under the direction and supervision, actually selling and delivering Sinclair products to a filling station under lease and being operated by the said Sinclair Refining Company, all of which was in the regular course of his employment.

"8. Your petitioner avers that the said George Fellows had stopped his truck at the filling station hereinabove referred to, which is located on the north side of the said highway just west of the point of the hereinafter alleged accident, and that he drove his truck in a southeasterly direction across said highway, preparatory to driving said truck in an easterly direction along the said highway.

"9. Your petitioner avers that he was operating the said Ford Roadster in a careful, prudent and skillful manner, and that the said automobile was properly equipped with standard brakes, which were in excellent condition and that said automobile was being driven on its right or north side of said highway at a speed of not more than forty-five miles per hour and that your petitioner at all times maintained a proper lookout for traffic on or about said highway.

"10. Your petitioner avers that when he was within a short distance of the said filling station that the said George Fellows without regard for traffic on the said highway, in utter disregard of the safety of others, particularly your petitioner, and without giving any notice, signal or warning, carelessly and negligently drove the said truck out from the said filling station as above alleged, onto the said highway, so that the said truck completely blocked the north half of said highway, which was the portion of said highway immediately in front of your petitioner.

"11. Petitioner avers that immediately on seeing the said George Fellows drive the said truck onto and across the said highway blocking the northern portion thereof, he realized the situation and contemplated turning in a southerly direction, but seeing an automobile approaching from the west which blocked this path or the southern portion of said highway, he applied his brakes, and seeing he was too close on the automobiles to stop, turned in a northerly direction, off the said paved highway and onto the graveled or dirt part thereof, where the shoulder and ditch were so rough and rugged that petitioner lost control of the said Ford Roadster and ran into a post connected with the said filling station located just north of said highway."

As appears from these quoted allegations, the gravamen of plaintiff's complaint is that Fellows carelessly and negligently, under the circumstances, drove his truck upon and to the center of the concrete portion of the highway, which action forced plaintiff, in order not to ram the truck head-on, to abandon the concrete and take to the shoulders of the road; that on account of the rough surface of the shoulders, he lost control of his car and ran it into the corner post of the filling station which Fellows had served immediately previous. He was injured in the collision, and sues for damages on this account, for doctor's, medical, and other bills and expenses incurred in the treatment of his injuries.

The accident is admitted by all defendants. Harkness admits that he was employed by the oil company as a commission agent receiving a commission on all its products sold and delivered by him, but denies that, in hauling, selling, and delivering said products, he acted on behalf of his company, but on his own account; that said products sold and delivered were hauled by his own agents and not by any agent of the oil company. He denies that the money collected in payment of sales of said products belonged to the company, or that work done by him and his employees in selling and delivering said products was carried on, as alleged by plaintiff, for the use, benefit, profit, and gain of the company; that George Fellows was his employee and was to no extent under the control, management, or supervision of the oil company. He admits that Fellows was operating the Chevrolet tank truck involved in the accident, owned by him (Harkness), to deliver the products of the company, which had been delivered to him to sell on a commission basis. He denies that the filling station where the accident occurred was leased by the company, and denies that it was the owner of said Chevrolet truck or the tank thereon. He also denies that plaintiff was operating his car in a careful and prudent manner, but on the contrary, it was being driven at the time of accident and immediately prior thereto at a rapid, reckless, and unsafe rate of speed, in view of existing circumstances and conditions, and specially denies that he maintained a proper lookout for traffic on said highway. Any negligence charged against Fellows is also denied.

He avers that before Fellows undertook to go upon the highway from the station, he looked in an easterly direction for approaching traffic, and saw and heard none; that before he reached the highway, he looked to the west for traffic, and, observing a car approaching from that direction (his right), he brought the truck to a stop, partially on the north side of the highway, and, while waiting for the car to pass, the car driven by plaintiff appeared from around the curve toward the east (his left), driven in the manner aforesaid. He denies that plaintiff, as by him alleged, saw Fellows drive the truck upon the highway, but on the contrary avers that the truck had been brought to a stop before plaintiff's car appeared in sight. He admits that, to avert a collision with the truck, plaintiff drove his car off of the concrete, on his own right-hand side, but avers that the accident occurred because plaintiff was driving the car too rapidly, and did not have it under proper control at the time.

In the alternative, the contributory negligence of plaintiff, in that he failed to maintain a proper lookout, and operated his car at a reckless and careless rate of speed, in view of the circumstances existing at the time, is pleaded in bar of his right to recover; and he further pleads that plaintiff had the last clear chance to avoid the accident for the reason that he could have brought his car to a dead stop on the highway before reaching the truck, after discovering its presence, if he had not been traveling at excessive speed at the time and under the circumstances; that the accident was due solely to the gross negligence and carelessness of plaintiff.

Fellows' answer and defenses therein urged is practically the same as that of Harkness.

The answer of the Sinclair Refining Company in substance and effect is the same as that of Harkness, with some minor exceptions. The same defenses are urged. This defendant avers that Fellows, as he started to drive upon...