Taylor v. Haik

• Decision Date: 04 March 1968
• Docket Number: No. 2943,2943
• Citation: 208 So.2d 433
• Parties: William K. TAYLOR and Maryland Casualty Company v. Philip R. HAIK, Nicole Simoneaux, d/b/a Rite-Way Driving School and Edward L. Zibilich, d/b/a Zibilich's Esso Service Station, and John Doe Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 433

208 So.2d 433

William K. TAYLOR and Maryland Casualty Company v. Philip R. HAIK, Nicole Simoneaux, d/b/a Rite-Way Driving School and Edward L. Zibilich, d/b/a Zibilich's Esso Service Station, and John Doe Insurance Company.

No. 2943.

Court of Appeal of Louisiana, Fourth Circuit.

March 4, 1968.

Rehearing Denied April 8, 1968.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Winn, New Orleans, for plaintiffs-appellees.

Drury, Lozes, Young & Curry, Rene A. Curry, Jr., New Orleans, for Edward L. Zibilich d/b/a Zibilich's Esso Service Station and The Employers' Liability Assurance Corp., Ltd., defendants-appellants.

Richard K. Simoneaux, New Orleans, for Philip R. Haik and Nicole Simoneaux, d/b/a Rite-Way Driving School, defendants-appellants.

Before BARNETTE, JOHNSON and TUCKER, JJ.

TUCKER, Judge.

This suit arose as the result of a collision between an automobile driven by Philip R. Haik and owned by Nicole Simoneaux d/b/a Rite-Way Driving School and one driven by Henry Stewart, an employee of Edward Zibilich d/b/a Zibilich's Esso Service Station. The car driven by Mr. Stewart was owned by Dr. William K. Taylor and it was stipulated that it was being driven either to or from Zibilich's Esso Service Station at the time of the accident. The collision occurred at the intersection of General Pershing and Carondelet Streets in the City of New Orleans at about 11:30 a. m. on December 29, 1964.

Suit was filed by Dr. Taylor and his subrogated insurer, Maryland Casualty Company, for damages to Dr. Taylor's automobile totalling $347.88, including the $100.00 deductible amount paid by Dr. Taylor. The original defendants were Mr. Haik, Mr. Simoneaux d/b/a Rite-Way Driving School, Mr. Zibilich d/b/a Zibilich's Esso Service Station, and John Doe Insurance Company, later discovered to be Employers' Liability Assurance Corporation. (Subsequently, plaintiffs filed an amended petition joining Mr. Stewart as a party defendant.) An answer was filed by Mr. Haik and Mr. Simoneaux who reconvened against plaintiffs for damages to the Rite-Way automobile, loss of use of this vehicle, and damages for the repair of Mr. Haik's lower false teeth plate. Mr. Haik and Mr. Simoneaux also filed a reconventional demand, which should more properly have been termed a third-party demand, against Mr. Zibilich, Zibilich's Esso Service Station, John Doe Insurance Company, and Henry Stewart, praying for the same relief. An answer was also filed by Mrs. Zibilich d/b/a Zibilich's Esso Service Station and Employers' Liability Assurance Corp. denying any responsibility to either the original plaintiffs or the plaintiffs in 'reconvention,' alleging that the sole and proximate cause of the accident was the negligence of Mr. Haik.

Judgment was rendered in favor of Dr. Taylor for $100.00 and Maryland Casualty Company for $247.88 and against Mr. Zibilich d/b/a Zibilich's Esso Service Station and Employers' Liability Assurance Corp. Plaintiffs' suit against Mr. Haik and Mr. Simoneaux d/b/a Rite-Way Driving School was dismissed. The reconventional demand by Mr. Haik and Mr. Simoneaux against Dr. Taylor and Maryland Casualty Company was also dismissed. There was no mention of the third-party demand of Mr. Haik and Mr. Simoneaux against Mr. Zibilich and and Employers' Liability Assurance Corp. thus it is assumed that this demand was also dismissed. From this judgment Mr. Zibilich d/b/a Zibilich's Esso Service Station and Employers' Liability Assurance Corp. have taken this appeal.

A brief was filed by Mr. Haik and Mr. Simoneaux as 'defendants-appellants' requesting the relief they originally prayed for. However, because they did not take an appeal, we can consider only the appeal of Mr. Zibilich and his insurer.

The theory of plaintiffs' suit against defendants is that Mr. Zibilich was the bailee of the Taylor vehicle. This allegation is amply supported. The relationship of a customer who leaves his automobile with a garage for repair, and the operator of the garage, is that of depositor and depositary or bailor and bailee (terms which are used interchangeably in our jurisprudence). Neely v. Tamburello, La.App., 187 So.2d 526, 527; Mintz v. Audubon Insurance Company, La.App., 140 So.2d 809; Indiana Lumbermens Mutual Insurance Co. v. Humble Oil & Refining Co., La.App., 170 So.2d 264; Great American Indemnity Co. v. Ford, La.App., 122 So.2d 111. The relationship continues even when the bailee's employee is returning the car to the owner. See Indiana Lumbermens Mutual Insurance Co. v. Humble Oil & Refining Co., supra.

It is also well established that where the bailor has proven injury, he thereby establishes a prima facie case against the bailee and casts upon the bailee the burden of proving the loss was not due to his negligence. Indiana Lumbermens Mutual Insurance Co. v. Humble Oil & Refining Co., supra; Great American Indemnity Co. v. Ford, supra; Neely v. Tamburello, supra.

Therefore we must determine whether or not defendants proved that the Zibilich employee, Mr. Stewart, was free of negligence. At the time of trial Mr. Stewart did not testify because he could not be located. The only witnesses to testify concerning the way the...