Jones v. Southern General Ins. Co.

• Decision Date: 30 June 1966
• Docket Number: No. 10615,10615
• Citation: Jones v. Southern General Ins. Co., 188 So.2d 715 (La. App. 1966)
• Parties: Mrs. August Christine JONES, Plaintiff-Appellee, v. SOUTHERN GENERAL INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 715

188 So.2d 715

Mrs. August Christine JONES, Plaintiff-Appellee, v. SOUTHERN GENERAL INSURANCE COMPANY, Defendant-Appellant.

No. 10615.

Court of Appeal of Louisiana, Second Circuit.

June 30, 1966.

Rehearing Denied Aug. 4, 1966.

Bodenheimer, Looney & Jones, Shreveport, for appellant.

Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for appellee.

Before HARDY, GLADNEY and BOLIN, JJ.

HARDY, Judge.

This is an action ex delicto in which plaintiff seeks damages resulting from the death of her minor son, Donald Wayne Jones, who was fatally injured while a passenger in a log truck insured by defendant.

On a previous appeal by plaintiff from judgment sustaining a motion for summary judgment, this court reversed the judgment of the lower court and remanded the case for trial on the merits (159 So.2d 307). Following trial there was judgment in favor of plaintiff in the principal sum of $10,000.00, from which defendant has appealed.

The facts are undisputed. Plaintiff's decedent, 18 years of age, was employed by his uncle, R. E. McCullough, a logging contractor, as a swamper. As a condition of the employment McCullough had agreed to furnish transportation to young Jones, which was specifically provided by a pickup truck driven by McCullough's 15 year old son, Dennis. The employer had forbidden young Jones to ride any other vehicle, and during the period of his employment prior to the date of the accident Dennis McCullough, operating the pickup truck, had driven Donald Jones from his home in Mansfield to the site of the logging operations, and, at the end of the day's work, had transported him back to his home in the pickup truck. On the day of the accident young Jones had quit work, without permission from or notification to his employer or any authorized representative, some two or three hours before the usual quitting time in order that he might return to Mansfield for the purely personal reason of fulfilling an engagement he had with a young lady . Decedent hitchhiked a ride on a truck owned by his employer, driven by an employee, one Carey Hudson, Jr., and insured by defendant, which was transporting logs to a mill in Mansfield. Dennis McCullough was also riding in the truck for the purpose of directing the driver, who was a new employee and unfamiliar with the route to the lumber mill. As the truck, traveling east on Louisiana Highway 5, approached a 'T' intersection with Louisiana Highway 175, the driver attempted to apply the brakes. According to the only testimony on this point, given by young Dennis McCullough, the brakes either failed or the driver missed the brake pedal, whereupon he attempted to slow the truck by shifting into low gear, but without avail due to the speed of the vehicle. Having lost control of the truck, the driver jumped from the cab and the vehicle overturned in a ditch on the east side of Highway 175, and plaintiff's son was fatally injured.

The conclusion of gross negligence on the part of the driver of the truck is inescapable and scarcely merits discussion. No attempt was made on the part of defendant to prove that the accident was caused by any defect in the brakes which was unknown to its insured or for which he was not responsible. However, in view of Hudson's negligence, the condition of the brakes is immaterial.

On this appeal counsel for defendant contends that decedent was in the course and scope of his employment and, further, that coverage of liability is excluded by the co-employee clause of the policy contract.

We find no difficulty in disposing of the first contention. The fact that Donald Jones had abandoned his work for the purpose or pursuing a personal mission completely unrelated to his employment is established without dispute. Under such a circumstance the general rule uniformly supported by our jurisprudence is succinctly stated in Malone's Louisiana Workmen's Compensation Law and Practice, Section 167, page 188, as follows:

'As a general proposition, the employee who abandons his work, with or without permission, for the purpose of attending to his personal business is not acting within the course of his employment.'

In a comparatively recent case this court considered the same issue, Mabry v. Fidelity & Casualty Company of New York, et al. (2nd Cir., 1963, writs refused), 155 So.2d 44, and the opinion contains the following pronouncement:

'In determining whether an accident arose out of an employment, it is necessary to consider only the questions: (1) Was the employee then engaged in his employer's business and not merely pursuing his own business or pleasure, and (2) did the necessities of the employer's business reasonably require the presence of the employee at the place of the accident at the time the accident occurred? Kern v. Southport Mill, 174 La. 432, 141 So. 19.'

Under the facts of this case both of the questions propounded above must be answered in the negative.

It is earnestly contended by ...