Indiana Lumbermens Mut. Ins. Co. v. Humble Oil & Refining Co.

• Decision Date: 01 December 1964
• Docket Number: No. 10299,10299
• Citation: 170 So.2d 264
• Court: Court of Appeal of Louisiana — District of US
• Parties: INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. HUMBLE OIL & REFINING COMPANY, Defendant-Appellant.

Page 264

170 So.2d 264

INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. HUMBLE OIL & REFINING COMPANY, Defendant-Appellant.

No. 10299.

Court of Appeal of Louisiana, Second Circuit.

Dec. 1, 1964.

Rehearing Denied Jan. 7, 1965.

Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant.

Bodenheimer, Looney & Jones, Shreveport, for appellee.

Before GLADNEY, AYRES and BOLIN, JJ.

BOLIN, Judge.

Plaintiff, as subrogee of its insured Glenn Bell, sues defendant to recover $696.42, representing the amount paid Bell by plaintiff as a result of damage to his 1957 Chevrolet automobile allegedly caused by the negligence of defendant's agent while driving the said car.

Bell had delivered his car to a service station operated by defendant company and while defendant's employee was returning the vehicle to its owner he drove the car into a bridge causing the loss for which this suit was instituted. From judgment in plaintiff's favor defendant appeals. There is no dispute as to the amount of the damage.

Plaintiff contends the accident was caused entirely by the negligence of Billy Joe Dowdy, the service station employee, who, while driving Bell's automobile north on a narrow two-way bridge in the city of Shreveport, lost control of the vehicle which struck the side of the bridge causing the resultant damage.

Defendant contends that Dowdy was faced with a sudden emergency not of his own making; that an oncoming vehicle was encroaching upon his lane of travel and driving at an excessive rate of speed; and that any lack of cool judgment on his part was excusable because of the emergency created by the oncoming motorist.

Since Mr. Bell deposited his automobile with defendant company in order to have it serviced, Louisiana Civil Code Articles setting forth the obligations of the depositary are relevant. LSA-C.C. Art. 1908, Arts. 2937 and 2938 generally provide that the duty of the depositary or bailee is to use the same diligence in preserving the property entrusted to him that he would use in preserving his own property. When the bailor has shown that the property entrusted to the bailee was damaged and that such damages are inconsistent with the exercise of due care required of the depositary, the burden of proof then shifts to the bailee to show that the loss did not occur through his fault or negligence. It is only by establishing his lack of fault that the bailee can exonerate himself from liability for damage to the property. Kern v. Bumpas (La.App. 2 Cir., 1958) 102 So.2d 263; Brown & Blackwood v. Ricou-Brewster Building Company, Inc., 239 La. 1037, 121 So.2d 70 (1960) and numerous cases therein cited.

The plaintiff herein having...