Standard Acc. Ins. Co. v. Rivet

• Decision Date: 19 March 1937
• Docket Number: No. 8275.,8275.
• Citation: 89 F.2d 74
• Parties: STANDARD ACC. INS. CO. v. RIVET et al.
• Court: U.S. Court of Appeals — Fifth Circuit

89 F.2d 74 (1937)

STANDARD ACC. INS. CO. v. RIVET et al.

No. 8275.

Circuit Court of Appeals, Fifth Circuit.

March 19, 1937.

Jas. G. Schillin and Eraste Vidrine, both of New Orleans, La., and M. U. Hayden, of Detroit, Mich., for appellant.

Robert B. Todd, of New Orleans, La., and Frank B. Ellis, of Covington, La., for appellees.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appealing from a judgment on a jury verdict, appellant assigns as error the denial of its motion for a direction. The suit was for damages from the death of plaintiff's son in a collision between an automobile, in which he was riding as a guest, and a truck owned by Frank de Latour, appellant's named insured. The action, under the authority of Act No. 55 of the General Assembly of Louisiana of 1930 was brought directly against appellant, the insurance carrier. It was pitched on two grounds. One was that, at the time of the collision the truck was being operated by a servant of the owner, in the business of the owner, and within the scope of the servant's authority. The other was that, in addition to protecting the named assured, the policy by express provision protected any person driving the truck with the consent of the owner, and that at the time of the collision it was being so driven. Defendant admitted in its pleadings that the truck was de Latour's and that at the time of the accident it was being driven by Mansion, a colored employee of de Latour, whose duty it was to drive the truck on his employer's business. That the truck was at the time of the accident being driven either on the business, or with the consent or knowledge of its owner, or within the scope of Mansion's employment was categorically denied. In addition, it was specifically alleged that without the knowledge, consent, or permission, and against the standing orders, of de Latour, the truck was being used by Mansion for his own personal and private purposes, to wit, taking his whole family and other relatives and friends, in great numbers, for a pleasure ride. Plaintiff offered evidence as to the actual collision and resulting damages, and rested. Defendant proved by de Latour that he was engaged in the wholesale and retail grocery business in New Orleans including eggs and vegetables; that the truck was used in that business, and Mansion was its driver; that his trucks were stored at Hopkins Garage, and that his drivers had instructions to bring the trucks to the garage after the days work was over; that none of the drivers were authorized, or ever had been authorized, to use the trucks except in connection with his business; and that to his knowledge Mansion had never before the night in question done so.¹

On cross-examination he testified that on that night when he left the store he had instructed Mansion to go to the French Market, buy the usual supplies for the stand, and return the truck to the garage. If he could not get the supplies that night, to go early in the morning, in which event he was to leave the truck at 2311 St. Bernard, opposite the foreman's house. He also testified that that truck and others had been used at night to go as far as Orange, Tex., to get poultry and eggs. "This negro driver had made trips for me for seven years. His work did not keep him out at night except when he was in the country. To my knowledge this was the first time he had ever used the truck for his own purposes. I did not know that Mansion was using the truck that night, and that is exactly what he told me, that it was the first time he had done so." Mansion's wife testified that she was in the truck at the time of the accident; that she got in right in front of the door; that her children begged her husband to take them for a ride, and begged so hard that he decided to take them; that he never used the truck outside of his boss' business. "There were eleven people in the truck when it was struck from the rear. There were ten people in the back sitting on boxes and tubs, the children and all of us. My sister in law, my four children, my sister in law's three children and a neighbor's boy. We were just taking a ride that night when the accident happened. We were going at a slow pace; we were talking and the children were laughing, just enjoying it." On cross-examination she testified: "That is the first time the truck was ever used to take the family riding that I know of." On recross: "My husband has never driven that truck home on any other night." Mansion testified he had worked for de Latour eight years; that he was driving the truck on the night of the accident, going to take a ride; that the accident happened on the Chef Menteur road about 8:30 p. m. "I was not going any special place that night; the kids wanted a ride and I took them riding; I used this truck for hauling chickens and eggs; I was supposed to leave the truck that night at the foreman's house. Ordinarily I left it at Hopkins garage. I did not leave it there that night because I had to go to the French Market at four in the morning and the garage did not open until six. When I left the store with the truck Mr. Grisoli, the foreman, and I were supposed to go to the French Market and get vegetables and fruit. We could not get the vegetables that night so I brought him home and took the truck to my house. I had never used this truck before for personal purposes. The reason I took it home that night was I live about fifteen blocks away from Mr. Grisoli's house where I was supposed to leave the truck. I had to get to the market about four o'clock in the morning, and I did not want to walk that distance in the dark, so I took the truck home and parked it in front of my house. When I got home I ate and sat on the steps, and all the kids begged me for a ride, and I...