Graham v. American Employers' Ins. Co. of Boston, Mass.

• Citation: 171 So. 471
• Decision Date: 05 January 1937
• Docket Number: 5335
• Parties: GRAHAM v. AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS., et al
• Court: Court of Appeal of Louisiana — District of US

171 So. 471

GRAHAM v. AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS., et al

No. 5335

Court of Appeal of Louisiana, Second Circuit.

January 5, 1937

Rehearing denied Feb. 5, 1937.

James T. Shell, Jr., and Ada Mott, both of Bastrop, for appellant.

Hawthorne & Files, of Bastrop, for appellees.

OPINION

HAMITER Judge.

The dismissal of plaintiff's suit under a judgment sustaining exceptions of no cause or right of action is responsible for this appeal.

Plaintiff's counsel, in their brief, substantially summarize the material allegations of the original and supplemental petitions as follows:

"On Saturday, January 25, 1936, Mrs. Ora Rogers, accompanied by the minor daughter of plaintiff herein, called at the place of business of McConathy-Young, Inc., Ford dealers in the Town of Bastrop, Louisiana, for the purpose of having demonstrated to her a secondhand automobile, with the ultimate view of making a purchase. While at said place of business Mrs. Rogers discussed the matter with one of the duly authorized agents of said company and was advised by him that the company had on hand for sale a 1934 V-Eight Coach Ford automobile, and requested that she take the car and make a driving test of same in order that she might fully satisfy herself of its condition and ultimately decide on the question of a purchase. Pursuant to that request, Mrs. Rogers drove the car around Bastrop for a short time and then drove same to her home located some five miles south of Bastrop where she parked same for the night.

"At about 10 o'clock, A. M., on the following morning, the agent aforesaid called at the home of Mrs. Rogers for the purpose of discussing further the contemplated sale. Mrs. Rogers, however, advised him that she had not finally decided on the question of the purchase, but that he could take the car and she would discuss the matter with him the next day. The agent, however, in an effort to consummate the sale, left the car in her possession, requesting that she drive and use it further in order to more fully satisfy herself regarding its condition, it being specifically alleged that such method of automobile demonstration was in accordance with the customs and usage of automobile dealers generally and particularly in conformance with the practices, customs and usages of the said McConathy-Young, Inc., and in furtherance of said company's business.

"Pursuant to the above request and for the purpose of making a driving test of the automobile with the ultimate view of making a purchase, Mrs. Rogers then drove the car to Alto, in Richland Parish, Louisiana, taking with her Miss Clevie Graham, the minor daughter of plaintiff herein, it being specifically alleged that Miss Graham accompanied the said Mrs. Rogers as her invited guest, with the consent of the said McConathy-Young, Inc., and in accordance with their general custom and policy in the demonstration of automobiles, same being in furtherance of McConathy-Young's business of selling cars. In making the return trip to Bastrop on the same evening, Mrs. Rogers wrecked the car by driving same head-on into a concrete bridge, the gross negligence of the said Mrs. Rogers having been the sole cause of the accident, causing personal injuries to plaintiff's minor daughter, for which damages are sought herein."

Plaintiff appears herein in his individual capacity, and for the use and benefit of his minor daughter, Miss Clevie Graham, and seeks damages for personal injuries to said daughter and for medical expenses. He prays for a judgment in solido against Mrs. Ora Rogers, McConathy-Young, Inc., and the American Employers' Insurance Company of Boston, Mass., the alleged insurer of said Ford dealer. The above-mentioned exceptions of no cause or right of action were filed by defendants McConathy-Young, Inc., and the American Employers' Insurance Company of Boston, Mass.

The insurance policy issued by said insurer to such Ford dealer, and herein sued on, was inserted in the record with the agreement of counsel that it is to be considered as a part of the pleadings in passing on the exceptions.

No appearance has been made by the defendant, Mrs. Ora Rogers.

The exceptions were sustained by the trial court, as before stated, and plaintiff perfected this appeal.

It is our purpose and duty to consider, by reason of this appeal, (1) the matter of the liability of McConathy-Young, Inc., and, consequently, its insurer, under the alleged facts; and (2) the liability of the insurer, irrespective of that of the insured, under the provisions, terms, and conditions of the policy contract, as affected by the provisions of Act No. 55 of 1930.

These will be discussed in the order listed.

It is well to observe at the outset that, in passing on the case under the above exceptions, we can take into consideration only the well-pleaded facts of the plaintiff and the documents made a part of the pleadings. Conclusions of law that may be found in the petition must be ignored.

Plaintiff seeks to impose liability on the dealer under the theory that the relation of principal and agent existed between McConathy-Young, Inc., the owner of the car, and Mrs. Rogers, the driver thereof at the time of the accident in which the child was injured. If it be found that such relationship existed, then the petition states a right and a cause of action against said dealer, and also against the insurer, as defendants' counsel concede, by reason of the terms and conditions of the policy.

It is provided in the Restatement of the Law of Agency, §1, that: "Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."

Mrs. Rogers, the prospective purchaser of the car, was unaccompanied by a salesman or employee of the dealer at the time of the accident. She had been permitted by the owner to drive the car whenever she pleased, and to make a thorough test of it, the purpose of this being that she might satisfy herself as to its desirability. It was not driven by her with a view of selling it to a third person for the account of the dealer. While driving from her home to Alto, and, at the time of the accident, on her return from that place, the vehicle was in her entire and unrestricted control, custody, and possession. She also chose this particular route for making the test. The dealer did not in any manner control or direct her actions or that of the machine while she was attempting to reach her decision relative to the purchasing of the car. It is essential in an agency relationship that the agent be subject to the control of the principal. This element was lacking in the arrangement between the dealer and the prospective purchaser in this case. Complete control of the car, and of Mrs. Rogers, if any previously existed, was relinquished by the dealer when she was granted the right to operate it alone.

The petition does allege that, "said car and the operation thereof during the entire time was in her possession, remained under the control, direction and supervision of the said McConathy-Young, Inc., and was, at the time of the accident, being so driven by said Mrs. Rogers in furtherance of said company's automobile business and as its agent." These allegations, however, are conclusions of the pleader and cannot be considered.

No doubt Mrs. Rogers occupied the legal status of a bailee at the time; but that alone did not constitute her an agent of the defendant dealer. Ordinarily, in cases of bailment, the agency relationship does not exist, because the bailor has no control over the bailee beyond what is given by the contract and is not responsible to third persons for his acts. A bailee over whose actions the bailor has no control is not an agent, even though he acts for the benefit of the bailor. 2 Corpus Juris Secundum, Verbo "Agency," p. 1027. Consequently, we conclude that Mrs. Rogers was not the agent of McConathy-Young, Inc., and that it is not responsible in damages for the injuries sustained. No cases in our Louisiana jurisprudence have been called to our attention, and we know of none, involving an identical factual situation. This court had occasion in the recent case of Mrs. Earl L. Smith v. Howard Crumley & Co. et al., 171 So. 188 (not yet reported in State report), to consider a controversy wherein third persons were injured by reason of the negligent driving of a prospective purchaser of a car. It appeared, however, that the dealer's salesman was in the vehicle at the time of the accident. We held therein that the dealer was responsible in damages, one of the principal reasons being that, ""the salesman remained in the car beside Aiken, was overseeing its operation and was in a position to, and in a measure did, direct and control the driver." The important distinguishing feature between this case and that of Smith v. Howard Crumley & Co., supra, is that here the driver and the car were not under the control and direction of the dealer, while in that case they were so controlled and directed. A like distinction appears to be recognized by a majority of the appellate courts of other states in which cases of similar nature have arisen, and by textwriters. In the leading case of Mosby v. Kimball, 345 Ill. 420, 178 N.E. 66, 67, decided by the Supreme Court of Illinois, it was stated: "It has been held in a number of cases in other jurisdictions that the owner of an automobile may be held liable for injuries occurring through the negligent operation of such automobile by a prospective purchaser or his representative, where the act of the owner's employee sent to demonstrate the automobile and give instructions as to its operation, in allowing the prospective...