Weis v. Pan-American Petroleum Corp.

• Decision Date: 27 January 1930
• Docket Number: 11,671
• Citation: 126 So. 90,12 La. App. 661
• Court: Court of Appeal of Louisiana — District of US
• Parties: WEIS v. PAN-AMERICAN PETROLEUM CORPORATION

126 So. 90

12 La. App. 661

WEIS v. PAN-AMERICAN PETROLEUM CORPORATION

No. 11,671

Court of Appeals of Louisiana, Orleans

January 27, 1930

Rehearing Granted February 17, 1930. Quantum Only.

Writ of Certiorari and Review Refused by Supreme Court March 31 1930.

Reported at: 12 La. App. 661 at 667.

Appeal from Civil District Court, Parish of Orleans, Division "C". Hon. E. K. Skinner, Judge.

Action by Camille Weis against Pan-American Petroleum Corporation.

There was judgment for plaintiff, and defendant appealed.

Judgment amended and affirmed.

McCaleb & McCaleb, of New Orleans, attorneys for plaintiff, appellee.

Cobb &amp Jones and Herman M. Baginsky, of New Orleans, attorneys for defendant, appellant.

OPINION

JANVIER, J.

Plaintiff claims from defendant $ 1,500, alleging that he was damaged to that extent by reason of the wrecking of his automobile by one Wegmann, the night attendant employed by defendant at its Lee Circle service station and garage. Shortly before midnight, Weis drove his car into defendant's service station and garage and requested that it be greased and oiled. In accordance with a custom which he had followed at the same garage many times previously, he left the car with the night attendant, telling him that he would call for it in the morning.

During the night the car was taken out of the garage by the attendant Wegmann for his own purposes, and, while it was being operated by him, it was very seriously damaged. Next day, when Weis called for the car, he was told by Mr. Carruth, manager of the various service stations of defendant: "I am sorry, but our man got drunk last night and took your car out and wrecked it." Thereupon Mr. Weis, who, together with some of the employees of defendant company, went to the scene of the wreck and looked over the car, stated that he would have nothing to do with the car, that it no longer belonged to him, and he refused to take charge of the wreckage.

Defendant contends that it is not liable because the employee, Wegmann, in taking the car out of the garage, was not acting within the scope of his employment, and because it (defendant), in employing Wegmann, had exercised due care in an effort to determine that he was a responsible, careful man. It thus appears that the contention of defendant is that, since Wegmann was employed to guard the car and to keep it in the garage, his act in taking it out was a departure from his duty to such an extent as to relieve the employer from liability for the results thereof. A case practically identical with this was decided by us on January 13, 1929, Gulf & Ship Island Railroad Co. vs. Sutter Motor Co. (No. 11645) 12 La. App. 495, 126 So. 458, and in that case we held the garage owner liable. We frankly confess, however, that the question presented is not so free from doubt as it appeared to us when we rendered the decision referred to. The present case has been most ably argued, and while we are still of the opinion that, under the circumstances presented, the garage owner is liable, the authorities cited in support of the contention of the defendant leave no room for doubt that the question is a very close one.

The authorities to which we refer, and which are most confidently relied on by defendant, are Sanderson vs. Collins, First King's Bench Division, p. 628 (1904), and Firemen's Fund Ins. Co. vs. Schreiber, 150 Wis. 42, 135 N.W. 507, 518, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823 (1912). In the Sanderson case the facts were as follows:

"The defendant sent his carriage to be repaired by the plaintiff, who was a coach-builder. The plaintiff lent a carriage of his own to the defendant for use while the repairs were going on. The coachman of the defendant, without his knowledge, took the plaintiff's carriage out for his own purposes, and while he was driving the carriage it was injured through his negligence. In an action to recover the cost of repairing it:

"Held, that as the coachman at the time when the injury was done to the carriage was not acting in the course of his employment, the defendant was not liable."

We believe, however, that the Sanderson case can be distinguished from the one now before us on the ground, as was stated in the dissenting opinion in Firemen's Fund Ins. Co. vs. Schreiber:

"It does not appear that the coachman was charged with any duty of caring for or protecting the machine during the night. It appears that when the coach was put in for the night the coach house was locked and the key left with the master or kept in the hall of his house."

In other words, since the coachman's duties in connection with the particular coach in question had entirely terminated, it was not within the scope of his employment to watch it or to take care of it, and when he feloniously extracted the key from the master's possession and by its use withdrew the coach from the coach house, by no stretch of the imagination can it be said that he was doing anything even remotely connected with his duties as a servant of the master. In the Firemen's Fund Insurance Company case, to which we have referred, the facts were almost identical with those presented in the case before us. We believe, however, that one of the facts in that case will serve to distinguish it from the instant case, and that fact is that the garage attendant, one Flynn, had completed his day's work and had left the garage, and thereafter returned and took out the automobile in question.

It is quite true that the Supreme Court of Wisconsin, in that case, stated that it made no difference whether the taking out of the car occurred during Flynn's working hours, or after his term of employment was over, but, after so stating, the court said:

"* * * We are inclined to hold that Flynn returned to the garage for the machine, for an unlawful purpose formed after he had substantially quit service for the day, and so his act was outside the scope of his employment, even from respondent's viewpoint. "

At any rate, we find ourselves unable to accept as sound the reasoning in the majority opinion, and feel that the minority opinion more nearly sets forth our views and is more in accord with logic.

In most of the cases cited in the majority opinion, the facts are clearly distinguishable. For instance, in nearly all of them it appears that the servant whose negligent or deliberate act caused the damage had stepped aside from the particular purpose for which he was employed, and was rendering services entirely dissociated from those he was employed to perform. We can well understand that a master who is a bailee is not responsible for the acts of his servant where the servant performs a service in no way connected with the duties he is employed to perform. But here the duty the servant was employed to perform was to keep the automobile in the garage and see that it was not taken out improperly by any person. It is manifest that, in the performance of that duty, it was incumbent upon him to see that the machine was removed by no other person, and particularly was he under a duty not to remove it himself. In the majority opinion in the Firemen's Fund case, we find the following:

"Little time need be spent with the contention of appellant that the scope of Flynn's employment was confined to washing machines. He was the night-man at the garage. That is plain. One of the duties of night-men, evidently, is to wash machines. Necessarily, his duties required him to prevent unauthorized interference with machines, to open and close the place as necessary to accommodate customers in taking out or putting them up, and to assist if necessary. The difficulty was that he violated the very purpose of his employment, instead of acting within the scope of it, in committing the trespass. It is hard to conceive a more plain case of stepping completely aside from the scope of one's employment, within the rule stated, than occurred in this case."

It appears to us that the reasons given which we have just quoted are ample authority for a contrary holding, and we agree with the minority opinion, which, in discussing the language which we have just above quoted, states:

"The opinion of the court seems to be grounded upon the proposition that the agent Flynn stepped aside from the scope of his duty in the circumstances causing the injury, and appears to ignore the proposition of law which makes the principal liable for the acts of the agent in violating the duty of the principal delegated to the agent to perform. An examination of the authorities will show that there is considerable confusion in the books as to when the principal may escape liability for the acts of the agent outside of the scope of his duty, or, more accurately speaking, when the agent is outside the scope of his duty in the particular case. The confusion results from determining upon the facts of each case when the agent is and when he is not acting outside of the scope of his duty. In the case at bar however, it would seem plain under the...