Lipscomb v. News Star World Pub. Corp.

• Citation: 5 So.2d 41
• Decision Date: 28 November 1941
• Docket Number: 6379.
• Court: Court of Appeal of Louisiana (US)
• Parties: LIPSCOMB et al. v. NEWS STAR WORLD PUB. CORPORATION.

5 So.2d 41

LIPSCOMB et al. v. NEWS STAR WORLD PUB. CORPORATION.

No. 6379.

Court of Appeals of Louisiana, Second Circuit

November 28, 1941

Appeal from Fourth Judicial District Court, Parish of Ouachita; J.T Shell, Judge.

Milton Coverdale, Jr., and George Wesley Smith, both of Monroe, for appellants.

Theus Grisham, Davis & Leigh, of Monroe, for appellee.

TALIAFERRO Judge.

Plaintiffs the mother and father of William K. Lipscomb, deceased prosecute appeal from judgment rejecting their demands in damages against the News Star World Publishing Corporation for the death of said son, allegedly caused by the negligence of the defendant's agent, Russell E. Rawls, while performing duties within the scope of his employment.

The defendant publishes a daily paper in the City of Monroe, Louisiana. The paper's circulation embraces a large area in all directions from said city. As a means of making quick and regular deliveries of papers to points remote from the city, the company owns and operates a fleet of trucks. Drivers are hired to operate them. On the morning of November 22, 1939, Russell E. Rawls, a regular employee of the company for over three years, was placed in charge of a truck laden with papers destined for points in the northeastern portion of the state. He left the city about 6 o'clock A.M., but before doing so drove by the office of the City Cab Company and there picked up Lipscomb to accompany him on the trip. The trip was uneventful until they attempted to recross the track of the Missouri Pacific Railway Company at or near Alsatia, Louisiana, in Madison Parish. At this crossing the truck was struck by a southbound train at about 8:30 o'clock, A.M. and both occupants were instantly killed.

In support of their theory of liability, plaintiffs allege that Rawls, for three years prior to his death, regularly invited persons to accompany him on trips made in the discharge of his duties to the defendant; that the defendant through its duly authorized officers had knowledge of this practice and impliedly consented thereto and acquiesced therein; that by said consent and acquiescence defendant invested said agent with apparent authority to extend invitation to persons to and who did in fact ride with him; that for said reasons, at the time of his death, William K. Lipscomb was an invitee of the defendant.

Responsibility for the accident is charged to Rawls exclusively. The train's operatives are exonerated from any fault or negligence whatever. Rawls is charged with having driven the truck upon the track carelessly and negligently, without stopping, looking or listening for the approaching train which, at the time, was in full view and could not be stopped before reaching the crossing.

In the alternative, should it be found and held that defendant did not have knowledge of the habitual acts of its said agent, in the respects above mentioned, and did not acquiesce therein, and that said deceased was not an invitee, plaintiffs assert defendant's liability to them on the ground that Rawls did "wilfully and wantonly drive the automobile upon the track in the path of the approaching train, thereby fatally injuring the deceased."

Defendant denies liability to plaintiff on any account. It denies knowledge, if such were true, of Rawls' practice of inviting persons to accompany him on trips for defendant, and avers that if he did so it was in direct violation of its rules and orders of which Rawls had personal knowledge; that it had no knowledge that deceased accompanied Rawls on the fateful trip of November 22d until news of the accident reached it; that by inviting deceased to make the trip and allowing him to ride in the truck, Rawls acted in violation of defendant's long established rule and beyond the scope of his employment; that when killed, as regards defendant, the deceased was a trespasser.

Only one witness to the accident survived. He is the engineer in charge of the train. He testified that when he first observed the truck it was approaching the track from the east at a moderate speed; that the whistle was blown four times and the brakes forcefully applied; that the speed of the truck was increased, seemingly to beat the train to the crossing.

The deceased did not know what struck him as the engineer says he was asleep "with his head over the back of the seat". The engineer did not know either party but the description he gave of the man asleep identifies him as being Lipscomb. Manifestly, the negligence of Rawls accounts for the tragedy; and this too, whether he saw the train and tried to beat it to the crossing or not.

It is probably true, in fact the record fairly well substantiates the allegation, that Rawls often invited or allowed persons to ride with him when on business for defendant. It is not proven that any officer of defendant had personal knowledge that he did so. Rumors implicating him in such practice did reach Mr. Murdoch, Circulation Manager, and he invariably reprimanded Rawls for so doing and reminded him of the company's rule on the subject.

All employees of defendant knew of the rule which forbade truck drivers to allow persons to ride with them. On March 15, 1939 a written statement calling attention to the rule and that it had been violated by some drivers was posted on a bulletin board and a copy of same delivered to each driver. They were therein informed that the rule would be strictly enforced. In addition, a sticker was affixed to each truck's windshield containing the words: "No Riders". On three different occasions drivers were discharged for violating the rule. Mr. Wilson Ewing, defendant's publisher and editor, testified that observance and enforcement of this rule was invariably insisted upon, and that if he had caught any driver violating it, instant discharge would have followed.

The duty of seeing the discussed rule enforced devolved primarily upon Mr. Murdoch, circulation manager. He testified, to which there is corroboration, that he often refused permission for any of the employees to ride with the truck drivers, but in some instances did consent thereto when the services of such employees were needed, but in no instance did he nor would he consent to strangers riding in the trucks.

The record, as a whole, unquestionably establishes a consistent and conscientious effort on the part of defendant's agents and officers to enforce its rule. It was impossible for them to know, especially at night or early hours of mornings, when the rule was violated. The fact that some drivers were discharged for infracting the rule and others reprimanded when suspected of so doing, argues most forcefully and conclusively against acquiescence in or ratification of the rule's violation.

It is well established in this state that when a person rides in a motor vehicle on the unauthorized invitation of the owner's employee, the status of the rider quoad the employer, is not that of guest or invitee but as trespasser; and if the rider is injured or killed from the driver's simple negligence while this status subsists, no liability therefor attaches to the employer. If this were not true the employer would be exposed to unnecessary vexatious lawsuits, financial loss and possible bankruptcy, on account of the indiscretion, carelessness and negligence of his drivers.

A motor vehicle driver is employed to perform definite duties for the employer. When he chooses to perform acts or deeds not necessary nor incidental to the discharge of such duties, he exceeds the scope of his employment and in thus acting only subserves his personal interest and purposes. Evidently Rawls was averse to...