Harding v. Christiana

• Decision Date: 09 June 1958
• Docket Number: No. 20732,20732
• Citation: 103 So.2d 301
• Parties: Herbert L. HARDING v. Nick J. CHRISTIANA and Texas Mutual Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 301

103 So.2d 301

Herbert L. HARDING v. Nick J. CHRISTIANA and Texas Mutual Insurance Company.

No. 20732.

Court of Appeal of Louisiana, Orleans.

June 9, 1958.

Lemle & Kelleher, Carl J. Schumacher, Jr. and Dudley D. Flanders, New Orleans, for plaintiff-appellant.

Ogden & Woods, Charlton B. Ogden, II and Fallon W. Bentz, New Orleans, for Nick J. Christiana defendant-appellee.

L. JULIAN SAMUEL, Judge ad hoc.

The defendant, Nick J. Christiana, was engaged in the wholesale poultry and egg business in connection with which he owned and operated some nine or ten trucks. On the night of the accident involved herein one of his truck drivers, Edmond Johnson, asked permission to drive home in one of these trucks because of the cold and rain and the long distance he had to walk. The defendant granted this permission with the specific instruction that Johnson must go directly home and 'no where else' and that Johnson could use the truck only for driving to his home and returning to work in the morning.

Johnson left his work that evening at about 8:00 p.m., his usual time of departure, and drove the truck to his home in Algiers. He remained at his home only long enough to eat and then, contrary to his instructions, drove in the truck to a bar in Algiers. Shortly after 11:00 p.m. of the same evening, while returning to his home in the truck, Johnson ran off the road and into a building at 1921 Whitney Boulevard which building was owned by plaintiff, Herbert L. Harding. Harding sued Christina and his insurer, Texas Mutual Insurance Company, for the resulting damages to his building.

The trial Court dismissed the suit against the insurance company as of non-suit due to the fact that said company had been placed in receivership and rendered judgment on the merits in favor of the defendant Christina, also dismissing the suit as to him. The plaintiff has appealed only from the judgment on he merits in favor of Christina.

Since there is no doubt about the driver's negligence, the only question involved is whether or not, under the doctrine of respondeat superior as expressed in Louisiana by LSA-Civil Code Article 2320, the employee Johnson was acting in the scope of his employment at the time the accident occurred. For, under the settled jurisprudence of this state, an employer is not responsible for the tortious act of an employee merely because the employee was using the employer's vehicle with the latter's consent. In order for such liability to attach the employee must be acting within the scope of his employment at the time his fault causes the damage. James v. J. S. Williams & Son, 1933, 177 La. 1033, 150 So. 9; Hadrick v. Burbank Cooperage Co., La.App.1938, 177 So. 831; Cado v. Many, La.App.1938, 180 So. 185; Futch v. W. Horace Williams Co., La.App.1946, 26 So.2d 776, 777; Romero v. Hogue, La.App.1954, 77 So.2d 74.

The plaintiff seeks to recover under the doctrine of re-entry, or temporary deviation, which is to the general effect that where the employee, who is driving the vehicle owned or provided by the employer, departs from his employment and undertakes a mission of his own, such employee re-enters his employment and the scope thereof after he has completed his own mission and has begun to return to his next duty or, after such completion, has begun to return the vehicle to the place where it belongs. Embry v. Reserve Natural Gas Co., 1929, 12 La.App. 97, 124 So. 572; Goldman v. Yellow Cab Co., 1931, 17 La.App. 450, 134 So. 351; Matheny v. U.S. Fidelity & Guaranty Co., La.App.1938, 181 So. 647; 14 Tulane Law Review 72.

It is the contention of the plaintiff that the employee Johnson was required by the defendant to keep the truck overnight at the former's home on the date of the accident; that Johnson had completed his deviation from the employment and was returning the truck to his home at the time the accident occurred; and that, under the above rule, he had re-entered the scope of his employment when he began this trip to the place where the truck was to be kept. Principal reliance is placed upon three cases: the Goldman case, cited above, Black v. Rock Island A. & L. Railway Co., 1909, 125 La. 101, 51 So. 82, 26 L.R.A.N.S., 166, and Duffy v. Hickey, 1922, 151 La. 274, 91 So. 733.

We cannot agree with this contention and are of the opinion that none of these cases is controlling here. In the Duffy case it is questionable that there was a deviation sufficient to constitute a departure from the scope of the employment, and in both...