Oliphant v. Town of Lake Providence

• Decision Date: 06 March 1939
• Docket Number: 35214.
• Citation: 193 La. 675,192 So. 95
• Court: Louisiana Supreme Court
• Parties: OLIPHANT v. TOWN OF LAKE PROVIDENCE et al.

192 So. 95

193 La. 675

OLIPHANT v. TOWN OF LAKE PROVIDENCE et al.

No. 35214.

Supreme Court of Louisiana.

March 6, 1939

On Rehearing June 26, 1939.

Second Rehearing Denied Oct. 30, 1939.

Answers to Certified Questions Conformed to Dec. 1, 1939.

See 193 So. 516.

Action by Mrs. Orval Oliphant against the Town of Lake Providence and another, for personal injuries received when plaintiff was struck by an automobile being driven by the son of the superintendent of the named defendant's light and water department. Judgment for plaintiff was appealed to the Court of Appeal, which affirmed the judgment and certified a question of law to the Supreme Court.

Question answered in accordance with opinion.

A master who purchases an automobile for convenience of his servant is not subject to liability for injuries received by third persons when automobile is being used by servant for servant's own purposes.

Hudson, Potts, Bernstein & Snellings, of Monroe, and Snyder & Sevier, of Tallulah, for defendant-appellants.

George Wesley Smith, of Monroe, for plaintiff-appellee.

FOURNET, Justice.

The judges of the Court of Appeal for the Second Circuit of Louisiana, availing themselves of the provisions of Section 25 of Article 7 of the Constitution of 1921, have submitted for our instruction a question of law which arises in the above entitled case pending before them on rehearing. In their original decree, they had affirmed the judgment of the lower court in favor of the plaintiff.

The facts of the case as certified to us, and accepted by both plaintiff and defendant, are as follows:

‘ The town of Lake Providence is a municipal corporation chartered under the laws of the State of Louisiana. It owns and operates the light and water utilities used there. Mr. E. J. Chaney is and has been for many years the superintendent and manager of the town's light and water department. Among his many duties were the overseeing of the installation of house connections and the extension of water mains, and, in the event of fire, to be present at the plant and assure the maintenance of an adequate water pressure. He was required to go to various parts of the town whenever necessary, whether day or night.

‘ Full authority for the employing and discharging of persons in connection with the ordinary work of the department was his. However, the designation of fixed employees, such as an assistant or assistant engineer, required the approval of the town's mayor and aldermen. He was also empowered to purchase materials needed by the department.

‘ The Town of Lake Providence purchased for and furnished to Mr. Chaney, for use in the performance of his work, a Ford coupe. The machine was kept at his residence at night, with the permission of the governing authorities, to facilitate the discharge of his duties.

‘ On the night of January 3, 1936, the superintendent went to his home and ate supper. He then asked his son John Chaney, who was in his eighteenth year and lived at the father's home, to accompany him in the town's car to the Providence Motor Company, located in the municipality. His purpose in going there was to obtain his personal car, on which repairs had been made, and his son was taken along to drive one of the automobiles back. On arriving at their destination the son remained in the Ford coupe while the superintendent went inside. He observed the repairs made on his car, and also entered into a discussion with a representative of the automobile company regarding the purchase of some tires for a truck that belonged to the town. He does not remember whether or not he had the tires in mind when he went there; however, previous thought had been given to such a purchase. The discussion caused a delay, so he directed his son to drive the town car back to his home and store it for the night, where it might be had in case he needed it. The son was not an [regular] employee of the town then, but he had previously worked for the utilities department on several small extra jobs. (Brackets ours.)

‘ The son proceeded to obey the directions given him, and while driving the car toward the designated place of storage it struck and severely injured the plaintiff herein. She instituted this suit against the Town of Lake Providence and the liability insurer of the automobile, asking an award of damages for her injuries.’

The question submitted for our instruction is: ‘ Assuming that the driver of the automobile, the superintendent's son, had the last clear chance to avoid the accident, but failed in his duty to do so, under the facts and circumstances above stated is the Town of Lake Providence legally responsible for the damages occasioned by his negligence?‘

The town of Lake Providence is authorized, under the provisions of Act 136 of 1898 (section 13), as amended by Act 181 of 1914 and Act 135 of 1916, to own and conduct the business of furnishing electricity and water to the inhabitants thereof. When engaging in such venture the corporation represents the pecuniary and proprietary interest of individuals, and its liability for damages occasioned by the negligence of its officers, employees, and agents in connection with such enterprises, is governed by the rules applicable to any private corporation or individual engaged in a similar business. See the City of New Orleans v. Kerr et al., 50 La.Ann. 413, 23 So. 384,69 Am.St.Rep. 442; Gann v. Great Southern Lumber Co., 131 La. 400, 59 So. 830; West Monroe Manufacturing Co. v. Town of West Monroe, 146 La. 641, 83 So. 881; Solomon v. City of New Orleans, 156 La. 629, 101 So. 1; Davis v. New Orleans Public Belt R. Co., 155 La. 504, 99 So. 419, 31 A.L.R. 1303; Hall et al. v. City of Shreveport, 157 La. 589, 102 So. 680; Howard v. City of New Orleans, 159 La. 443, 105 So. 443; Rome v. London & Lancashire Indemnity Company of America, 181 La. 630, 160 So. 121; Municipal Corporations, 28 Cyc. 1257; 43 Corpus Juris 920; and 19 R.C.L. 1109.

This liability of an individual or corporation for the tortious acts of its agents, officers, or employees, and the liability of a master for the tortious acts of his servant is grounded upon the maxim of respondeat superior and is to be determined ‘ * * * by considering, from the factual standpoint, the question as to whether or not the tortious act was done while the agent or servant was acting within the scope of his employment.’ 2 American Jurisprudence 278, 279. See, also, Gaillardet v. Demaries, 18 La. 490; Boulard v. Calhoun, 13 La.Ann. 445; Williams v. Car Company, 40 La.Ann. 87, 3 So. 631,8 Am.St.Rep. 512; Graham v. St. Charles Street R. Co., 47 La.Ann. 1656, 18 So. 707, 49 Am.St.Rep. 436; Dorsey v. Railway Co., 104 La. 478, 29 So. 177,52 L.R.A. 92; James v. J. S. Williams & Son, 177 La. 1033, 150 So. 9, and Article 2320 of the Revised Civil Code.

In the instant case the defendant contends that the plaintiff is not entitled to recover against the town for the reason that: ‘ At the time of the accident John Chaney was not driving the car as the agent or employee of the Town of Lake Providence, was not engaged in the course or scope of any employment by the Town, and was not pursuing the business or benefit of the Town.’ In support of this contention the defendant relies on the ruling of this court in the case of James v. J. S. Williams & Son, Inc., 177 La. 1033, 150 So. 9, 11.

In that case the defendant company owned and operated an undertaking establishment in the city of Shreveport and employed one Roy Rhodes to drive its funeral car which was kept in a garage at defendant's place of business. One evening, after the day's work was done, one Jemison, a helper in the establishment, requested Rhodes to take him home in the funeral car. Rhodes did so and while on the way back to defendant's garage where he intended to store the car for the night, he ran over plaintiff and injured her. In the course of the opinion this court said:

‘ It would be wholly illogical to hold that when a chauffeur takes his employer's automobile without authority and uses it for a mission of his own, his employer is not responsible for his negligent acts while on the outgoing trip, but is responsible for such acts while he is on his way back, because if the outgoing trip is unauthorized and beyond the scope of the employee's employment, the incoming trip is likewise so, being a continuation and part of the same unauthorized mission. An employee may suspend his contractual relations with his employer by temporarily departing from the scope of his employment and going on a mission of his own or for another, and, when he does, that relationship is suspended during the entire time he is on such mission, and not half the time.

‘ If a chauffeur suspends his contractual relations with his employer by taking and using his employer's car for his own private purposes, as relates to the use of the car for the purpose taken, he is in law a stranger to the owner and his use of it is unlawful, as much so as if he were not employed by the owner in any capacity. It would hardly be contended that if a stranger went to a garage, took an automobile and used it for a joy ride, the owner of the car would be responsible for the negligent acts of the trespasser while on his way back to the garage for the purpose of restoring the car. Yet that would be as logical as to say that the owner is responsible for the negligent acts of his chauffeur who is returning from a wholly unauthorized mission.’

The facts of this case are distinctly different from those in the James case in so far as the scope of the duties entrusted to the respective employees is concerned. In the James case Rhodes was a helper in the funeral establishment and his authority to use the car was limited to driving the same when in...