Harkness v. Olcott Stone Motors

• Decision Date: 21 June 1943
• Docket Number: 36986.
• Citation: Harkness v. Olcott Stone Motors, 203 La. 947, 14 So.2d 773 (La. 1943)
• Court: Louisiana Supreme Court
• Parties: HARKNESS v. OLCOTT-STONE MOTORS et al.

14 So.2d 773

203 La. 947

HARKNESS v. OLCOTT-STONE MOTORS et al.

No. 36986.

Supreme Court of Louisiana

June 21, 1943

Rehearing Denied July 13, 1943.

Thompson & Dormon, of Monroe, for applicant.

Hudson Potts, Bernstein & Snellings, of Monroe, for respondent.

O'NIELL Chief Justice.

This is a suit for compensation under the Employers' Liability Act Act No. 20 of 1914. The defendant, employer, pleaded that the plaintiff was not performing services arising out of or incidental to his employment at the time of the accident in which he was injured, and, in the alternative that the injury was caused by the plaintiff's being intoxicated at the time of the injury. After hearing the case on its merits the judge of the district court rejected the plaintiff's demand, on the ground solely that he was not performing services arising out of or incidental to his employment at the time of the accident. The judge therefore found it unnecessary to consider the question whether the injury was caused by the plaintiff's being intoxicated. The court of appeal affirmed the judgment, without considering the alternative plea that the injury was caused by the plaintiff's being intoxicated. A rehearing was granted and the judgment was reaffirmed,--one of the three members of the court dissenting. The case is before us on a writ of review.

The essential facts of the case are not in dispute. The plaintiff was employed as an automobile salesman by the defendant, a commercial partnership styled Olcott-Stone Motors, conducting the business of an automobile sales agency and repair shop. The employment was on a commission basis, the commission being 6 per cent on sales of new cars and 7 per cent on sales of used cars. Under the agreement the plaintiff was entitled to his commission on all sales made to customers whom he brought to the defendant's place of business, even though the sale might be consummated finally by some other salesman. The plaintiff had been employed by the defendant only two weeks when, on Thursday, February 13, 1941, he negotiated a sale of a used Plymouth car to a prospective purchaser named S. E. Free. The plaintiff had heard that Free was in the market for an automobile and had commenced the negotiations several days before the completing of the agreement on February 13th. The price and terms of the sale were agreed upon, the cash payment to be $225, and the balance of the price to be represented by promissory notes secured by a chattel mortgage on the car. When the price and terms were agreed upon Free informed the plaintiff that he Free, had only $75 of the purchase price, but that he had arranged with his brother, H. N. Free, for a loan sufficient to make up the cash consideration of $225, and that his brother had agreed to meet him at the Vicksburg Hotel, in Vicksburg, Mississippi, on the next day, or on Saturday, the 15th of February, to lend him the money. S. E. Free, therefore, asked the plaintiff to go with him in the automobile to Vicksburg to meet H. N. Free and get the $150 necessary to complete the transaction. The plaintiff agreed to make the trip with S. E. Free the next day. That afternoon, Thursday, the 13th of February, the plaintiff and S. E. Free drove about the City of

Monroe, calling upon other prospective customers whom the plaintiff had contacted, informing them that the plaintiff would be out of town the next day. In driving about the city that afternoon the plaintiff and Free drank freely and became somewhat intoxicated; in consequence of which, and with the intention on the plaintiff's part of remaining in touch with his customer, the plaintiff invited and persuaded Free to sleep at plaintiff's home that night. The next morning both men arose late, and, after gasing up the car at the expense of Free, the two men drove off for Vicksburg to meet Free's brother. The distance from Monroe to Vicksburg is about 70 or 80 miles. With the consent of the plaintiff, S. E. Free did the driving, for the purpose mainly of becoming well acquainted with the operation of...