147 So. 120 | La. Ct. App. | 1933
This is a suit for physical injuries brought on behalf of Myrtle Carriel, a nine year old minor, by her mother, Mrs. Ralph Carriel, against the Federal Compress Warehouse Company, the owner of a motortruck which ran into and injured Myrtle Carriel on November 24, 1930, under circumstances which, it is alleged, involved the responsibility of defendant. The defense, which prevailed below, is twofold: First, the accident resulted either solely or partially from the negligence of the injured child; second, the truck, at the time of the accident, was in charge of defendant's employee, William Gaines, but was being used on a personal errand of Gaines and not in the interest of defendant.
On November 24, 1930, William Gaines, an employee of the defendant, was instructed to drive a motortruck belonging to defendant to the Dixie Battery Works for certain necessary repairs. When the truck reached the corner of Felicity and Prytania streets on its way to the Dixie Battery Works, which was situated on the corner of Thalia and Dryades streets, a former employee of the defendant, by the name of Johnson, hailed it and requested to be transported to his home, No. 2409 S. Galvez street, stating that he had just received an injury to his feet which prevented him from walking any further. Gaines at first demurred, stating that he had been forbidden to take passengers on his truck, but finally yielded, picked up Johnson, and, changing his course, started toward Johnson's home. Upon reaching the intersection of S. Claiborne and Washington avenues, the truck struck plaintiff's nine year old daughter, Myrtle, who was crossing the street, knocked her down, and rolled over her right leg, causing its subsequent amputation.
Pretermitting a discussion of the testimony in the record tending to show negligence on the part of Gaines, we will consider the question of whether Gaines was acting within the scope of his employment at the time of the accident, since there can be no recovery in an action based upon the doctrine of respondeat superior, unless it is demonstrated that the servant, however negligent, was, at the time of the wrongful act, engaged in his master's business. Tinker v. Hirst,
We are not here concerned with the distinction which the authorities have made in cases like the present where there has been a departure from the employer's business between "going and coming" (Cusimano v. Spiess,
The accident in the cited case occurred while the driver was taking the woman to work, and, nevertheless, the employer was held liable. Perhaps the case may be distinguished, upon some ground which has not occurred to us, from Cusimano v. Spiess and Black v. R. I. A. L. R. Co., supra, but, in any event, to the extent that it may be said to hold an employer responsible for an accident which happens due to the negligence of an employee who has departed from his employer's business, the accident occurring on the outward and not the return journey, when he may be said to have re-entered his employer's service, we find ourselves unable to agree with its holding. In the case at bar, though the employee originally started on an errand of his employer, he departed therefrom, and, at the time of the accident, was on a personal mission. Consequently his employer cannot be held liable in damages for the effect of his negligence at a time when he was out of character as an employee and on business of his own. We are of opinion, therefore, that the defendant is not responsible for the accident for the effects of which this suit is brought.
Consequently, and for the reasons assigned, the judgment appealed from is affirmed.
Affirmed.