Watson v. Ben

• Court: Court of Appeal of Louisiana
• Writing for the Court: GUIDRY; STOKER; STOKER
• Citation: Watson v. Ben, 459 So.2d 230 (La. App. 1984)
• Decision Date: 20 November 1984
• Docket Number: No. 83-1029,83-1029
• Parties: Melvin WATSON, Plaintiff-Appellant, v. Waddy BEN, et al., Defendants-Appellees.

Page 230

459 So.2d 230

Melvin WATSON, Plaintiff-Appellant, v. Waddy BEN, et al., Defendants-Appellees.

No. 83-1029.

Court of Appeal of Louisiana Third Circuit.

Nov. 20, 1984.

Alex D. Chapman of Fusilier and Chapman, Ville Platte, for plaintiff-appellant.

Gist, Methvin, Hughes & Munsterman, H.B. Gist, III, Alexandria, Stephen Ledet, Jr., Opelousas, Edwards, Stefanski & Barousse, James M. Cunningham, III, Crowley, Guglielmo & Lopez, James Lopez, Opelousas, for defendants-appellees.

Before DOMENGEAUX, GUIDRY, STOKER, YELVERTON and KNOLL, JJ.

GUIDRY, Judge.

This is a suit for damages arising out of a collision between a pickup truck owned and operated by defendant, Michael A. Beard, and a parked truck owned by Waddy Ben, an employee of J.W. McDonald. Plaintiff, also an employee of J.W. McDonald, was standing between the parked Ben vehicle and another parked vehicle owned by J.W. McDonald. Plaintiff sustained injuries when he became entrapped between the two parked vehicles at the time of the collision.

Plaintiff initially brought suit against the State of Louisiana, through the Department of Transportation and Development (DOTD) and Waddy Ben. Plaintiff later amended his petition to include Solid Controls, Inc., ¹ Beard's employer, Michael A. Beard and his insurer, Southern Farm Bureau Casualty Insurance Company, as defendants. Solid filed a third party demand seeking indemnity and/or contribution from Michael Beard and his insurer, Southern Farm. Beard and Southern Farm thereafter filed a third party demand against the State of Louisiana through DOTD and J.W. McDonald seeking the same relief. Liberty Mutual Insurance Company (J.W. McDonald's workmen's compensation insurer) intervened claiming its subrogation rights for the workmen's compensation benefits and medical expenses paid to or on behalf of plaintiff. ² The trial court granted the State's exception of no cause or right of action and dismissed plaintiff's suit against the State of Louisiana through DOTD, with prejudice, by judgment dated October 1, 1982. Upon plaintiff's motion, suit was also dismissed with prejudice as to Waddy Ben by judgment dated May 18, 1981. Both of these judgments are now final.

After trial on the merits, judgment was rendered in favor of plaintiff and against Michael Beard and Southern Farm, jointly and solidarily, in the amount of $58,480.00. Defendant Beard's defense of impecuniosity was sustained by the trial court resulting in the judgment being reduced to the amount of insurance coverage provided by Southern Farm, i.e., $10,000.00. Plaintiff's claim against Solid was dismissed. ³ Plaintiff appeals. No other party appealed or answered plaintiff's appeal.

FACTS

The record reflects the following pertinent facts to be without dispute. The accident occurred on Friday, October 24, 1980 at approximately 2:30 p.m. on Highway 1109 in Acadia Parish. Plaintiff was employed by J.W. McDonald Construction Company and was involved in the work of resurfacing a portion of Highway 1109 at the time of the accident. Defendant, Michael Beard, was employed as a service technician by Solid Controls, Inc. Solid operates out of Opelousas, Louisiana, and rents oilfield equipment to oil rigs. Beard was on 24 hour call that day, but had punched out at around 2:13 p.m. and was on his way home to Crowley, Louisiana, from Solid's shop in Opelousas.

As Beard approached that portion of Highway 1109 which was under construction, he encountered a McDonald watering truck in the center of the highway dropping water on the road surface to compact the dirt. The driver of the watering truck signaled for Beard to pass him. As Beard went around the water truck, he lost control of his vehicle and slid into the Ben truck which was parked on the side of the road. Plaintiff was standing between this parked vehicle and another at the time of the collision and was entrapped between the two parked vehicles. As a result of the accident, plaintiff sustained injury.

At the time of the accident, Beard was "on call" for 24 hours. His work schedule was six days on call and two days off call. Although Beard had "punched out" that afternoon at around 2:13 p.m., he remained "on call" for the rest of that day. Beard was subject to being called back to work at any time for the remainder of that day and was thus returning to his home to await any possible call from his employer.

Although the truck which Beard was driving was his own truck, Solid paid Beard a $300.00 a month "truck allowance". This sum was based upon what a leasing company would charge for the same vehicle. Beard was also provided with various credit cards for the purchase of gas, for his personal use as well as for his business use. Beard was also authorized to use the credit cards if an emergency arose while he was on the road. Beard had a choice of whether to receive a company vehicle from Solid or to use his own truck and receive the travel allowance. He chose the latter. Beard was also furnished with oil and filters for his truck, and general maintenance on the truck was performed at Solid's shop in Opelousas. Solid required routine inspections of the employee-owned vehicles to insurer their proper operation and fitness. Service reports were prepared on these vehicles and necessary repairs were mandated by Solid.

In brief written reasons for judgment, the trial court concluded as follows:

"(1) That Michael Beard was negligent proximately causing plaintiff's injuries; he and his insurer must be cast.

(2) That Michael Beard was not in the course and scope of his employment at the time. There is not sufficient tie-in to the employment to make applicable the exception to the general rule that an employee returning home from work is not in the course and scope of his employment. The Johnson case is significantly different. There (a) the car was employee-owned, (b) it was especially equipped to receive emergency calls and (c) the employee had to drive that car to secure calls while in it. None of these factors existed here. The last difference, that is, that the employee be able to receive calls while in the car is particularly distinguishing. The other authorities cited by counsel for both sides are indicative of the general trend in jurisprudence but are not so precisely similar as to warrant discussion. The claim against Solid Controls, Inc. will be dismissed.

(3) That damages are fixed as follows:

a. Lost wages to date of trial      $ 18,480.00
                b. Future lost wages and physical
                    disabilities other than
                    diminished earning capacity       15,000.00
                c. Pain and suffering                 35,000.00
                                                    -----------
                   Total                            $ 58,480.00
                

(4) That Michael Beard is lacking significant assests; the defense of impecuniosity must be sustained. The claim against him is limited to the insurance coverage amount of $10,000."

No party to the instant appeal urges error in the learned trial judge's conclusions regarding the negligence of Michael Beard or the reduction of the judgment because of his impecuniosity. Appellant does however urge that the trial court erred in finding that Beard was not in the course and scope of his employment with Solid at the time of the accident. Additionally, appellant urges that the trial court's award of $35,000.00 for the pain and suffering endured by him is grossly inadequate. These are the only issues presented on appeal.

WAS BEARD IN THE COURSE AND SCOPE OF HIS EMPLOYMENT WITH

SOLID AT THE TIME OF ACCIDENT?

The doctrine of respondeat superior is set forth in La.C.C. Arts. 2317 and 2320. Article 2320 provides in pertinent part:

"Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed."

The jurisprudence has construed this article to mean that the employer is liable for the tortious acts of his employees "committed while acting within the scope and course of his employer's business." Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3rd Cir.1974) and the cases cited therein. In the case of LeBrane v. Lewis, 292 So.2d 216 (La.1974), our Supreme Court stated that where the tortious conduct is "so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business," liability for that conduct will be imposed upon the employer.

There is no precise rule by which one can determine in every instance whether the employee is acting within the course and scope of his employment, although it is generally held that an employee, in going to and from his place of employment is not considered as acting within the course and scope of his employment. This general rule is not however without exception.

The criteria for determining when an employee, who while driving a motor vehicle, is acting within the course and scope of his employment was set forth in the recent case of Johnson v. Dufrene, 433 So.2d 1109 (La.App. 4th Cir.1983), writ denied, 441 So.2d 765 (La.1983), wherein the court stated:

"Whether an employee is within the course and scope of his employment during any given incident presents a question that is not answerable except by general rules, given the myriad contexts in which it might arise. The specific inquiry is whether the employee's tortious conduct "was so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interest". Daniels v. Conn., 382 So.2d 945 (La.1980); LeBrane v. Lewis, 292 So.2d 216 (La.1974). In those instances where the injury is caused by an employee's negligence while driving a vehicle owned by his employer, our jurisprudence has repeatedly stated that every case must be decided on its own facts. The...