Herbert v. Langhoff

• Decision Date: 27 April 1936
• Docket Number: 33829
• Citation: 185 La. 105,168 So. 508
• Court: Louisiana Supreme Court
• Parties: HERBERT v. LANGHOFF et al

168 So. 508

185 La. 105

HERBERT v. LANGHOFF et al

No. 33829

Supreme Court of Louisiana

April 27, 1936

Rehearing Denied May 25, 1936

Judgment set aside in part and affirmed in part.

Sanders Baldwin, Haspel & Molony and Robert R. Rainold, all of New Orleans, for relator William A. Langhoff.

D Thomas Salsiccia, of New Orleans, for respondent Mrs. Catherine Ann Herbert.

Robert G. Polack, of New Orleans, for respondent in writ Jeannie Copes White.

ODOM Justice. O'NIELL, C. J., absent.

OPINION

ODOM, Justice.

This is a damage suit growing out of a collision between plaintiff's automobile while being operated by a colored man named Andrew Simmons and one owned and operated by Miss White. The facts, in so far as they need presently be stated, are that plaintiff drove her automobile to the gasoline filling station of William A. Langhoff for the purpose of purchasing gasoline. The only person she found there was a colored man named Andrew Simmons, who sold her seven gallons of gasoline. After the purchase, plaintiff asked the colored man if he washed cars and he told her that he did. She asked him what he charged, and he told her that his charge was 50 cents, and that he would be glad to wash hers. She told Simmons that he might wash the car and that she would pay the price, but that it would be necessary for him to carry her to her home in the car and bring it back to be washed and that after it was washed he would have to deliver it back to her at her residence.

Simmons agreed to do this, carried plaintiff to her home in the car, drove it back to the filling station, and there washed it. He then started back to plaintiff's home in the car, and while on the way the car collided with one owned and operated by Miss White and was badly damaged.

Plaintiff brought suit against both Miss White and Langhoff, the owner of the filling station, alleging that the collision was due to the joint negligence of Miss White and Simmons. The theory on which Langhoff is sought to be held liable is that Simmons was his employee and agent, and that while driving her car he was acting within the scope of his employment.

Miss White denied that she was negligent, and defended on that ground. Langhoff's defense was that Simmons was not his employee, and for that reason he was not liable for any damage caused by his negligence.

The trial judge dismissed the suit against Miss White on the ground that the collision was due solely to the fault and negligence of Simmons. He rejected plaintiff's demands against Langhoff on the ground that Simmons was not his employee and agent. Plaintiff carried her case to the Court of Appeal. That court sustained the trial court's finding as to the negligence, affirmed the judgment as to Miss White, but reversed it as to the defendant Langhoff, holding that he was liable because Simmons was his agent.

We ordered the case up on the application of Langhoff, not for the purpose of inquiring into the question of negligence, because we accept the findings of the Court of Appeal as to that, but for the purpose of reviewing the judgment of that court holding that as a matter of law Langhoff was liable to plaintiff for damage she sustained on account of the negligence of Simmons.

Article 2320 of the Civil Code says that: "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." It follows, therefore, that, if the relationship of master and servant existed between Langhoff, the defendant, and Simmons, the driver of plaintiff's car, and that if the damage to plaintiff's car was occasioned by the negligence of Simmons while in the exercise of the functions for which he was employed, then Langhoff is liable.

The Court of Appeal found and affirmatively held that no contractual relationship ever existed between Langhoff and the colored man, Simmons; that no relationship of master and servant between them arose out of a contract of employment. On this point the Court of Appeal said:

"There is no positive evidence contradictory of that offered on behalf of defendant Langhoff to show that, as a matter of actual fact, the negro Simmons was not in his employ, and, in the absence of such evidence, we cannot but conclude that there was no relationship of master and servant between them."

The basis of the court's holding that Langhoff was liable was its finding that under the circumstances shown to exist he was estopped to deny the agency.

The rule is well established in this state and elsewhere that, if a person by [*110his] conduct and course of dealings leads others to believe that a certain party is his accredited agent, he is estopped from denying the agency when the rights of third persons become involved through the acts and conduct of the ostensible agent.

The doctrine of "agency by estoppel" is well recognized. But, as stated in Corpus Juris, vol. 2, § 70, p. 461: "The doctrine of estoppel involves only apparent or ostensible agency, which exists where the principal intentionally, or by want of ordinary care, induces third persons to believe another to be his agent although he did not in fact employ him. As to third persons, the distinction between actual and apparent or ostensible agency is unimportant as the liability of the principal and agent is the same in either case; but as between the parties themselves, of course, the ostensible agent is no agent at all. Apparent or ostensible agency is merely agency by estoppel and it is more strictly accurate to say that liability arises from the acts of so-called agent, not because there is any agency but because the principal will not be permitted to deny it." The same work, volume 2, § 212, p. 574, says:

"Ostensible authority to act as agent may be conferred if the principal affirmatively or intentionally or by lack of ordinary care, causes or allows third persons to act on an apparent agency."

It is on these general principles, or the doctrine of agency by estoppel, that the Court of Appeal held that Langhoff was liable for the acts and negligence of the negro Simmons. In support of its holding on this point the court cited three Louisiana cases, Rankin v. Nolan Stewart et al., 5 La.Ann. 357, Airey & Company v. Okolona Savings Institution, 33 La.Ann. 1346, and American Disinfecting Co. v. Police Jury, 10 La.App. 389, 120 So. 135, 137.

The holding in the Rankin Case is not pertinent here, but the other two cases support the general rule or doctrine of agency by estoppel. However, these cases are distinguishable from the one at bar on the facts, and we do not think they support the court's holding here.

In the Airey & Co. Case the facts were that Airey & Co. deposited to its credit in Okolona Savings Institution $ 4,990.63 to be paid for cotton purchased in Mississippi by plaintiff's customers or agents on the demand of the latter. A man named Seymour was plaintiff's agent and solicitor. Seymour had arranged the deposit by plaintiff in the defendant bank. He represented to the bank that R. H. Ward, a cotton buyer, was fully authorized to draw against said deposit, and the entire amount of the deposit was paid out by the bank on the checks or orders drawn by Ward. Airey & Co. had no direct contractual relationship with Ward. Seymour was Airey & Co.'s accredited agent to the knowledge of the bank, and it was upon his representation that the bank paid out the funds on the checks and orders of Ward.

Plaintiff brought suit against the bank for $ 2,490.63, alleging this to be the balance due after giving credit for $ 2,500 acknowledged to have been properly paid. The bank's defense was that the entire amount had been paid out on the orders of Ward and that it owed plaintiff nothing. Plaintiff then denied Ward's authority to draw against the account.

The court found the facts to be that plaintiff had personal knowledge of Ward's dealings and had sanctioned his conduct by approving his...