92 So. 308 | La. | 1922
Plaintiff appeals from a judgment sustaining an’ exception of no cause of action, leveled against his petition demanding damages for personal injuries alleged to have been received through the fault of defendant’s chauffeur.
The pertinent allegations of the petition are as follows:
“(2) That on or about Wednesday, November 10, 1915, at about 7:45 o’clock p. m., on Royal street, near the corner of Canal street, in this city, petitioner was struck in the left eye by one Edward W. Miller, a chauffeur in the employ of defendant.
“(3) That at the time petitioner was crossing Royal street from the river to the woods side, when he narrowly escaped being struck by defendant’s automobile, which was driven in a careless manner by defendant’s said chauffeur.
“(4) That petitioner, in his excitement, expressed his disapprobation of the chauffeur’s action, by stating ‘You damned fool, what’s the matter with you? Can’t you see where you are going?’ or words to similar effect; but, upon seeing that there was a lady in the car, who, petitioner has since been informed, was defendant’s wife, petitioner immediately apologized for his language, and continued to the sidewalk.
“(5) That petitioner is informed and believes that defendant’s chauffeur jumped from the automobile, assaulted petitioner from the back, threw petitioner to the sidewalk, and struck him in the left eye, all without cause or provocation.
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“(7) That at the time defendant’s chauffeur was acting in the course of and during his employment, in the course of his authority, to protect the occupants of the car, with his master’s work in mind, and for what he believed to be his master’s benefit.”
It is not impossible for the servant to use his personal venom in doing unlawfully the work of the master, in such manner as to render the latter liable, where, as suggested by counsel for appellee in oral argument, a chauffeur deliberately ran the automobile over some one against whom he had a personal grudge. That, however, is not the ease here. The chauffeur abandoned his work of driving the machine, according to the allegation of the petition, constituted himself court and jury, and proceeded to punish plaintiff for what he conceived to be an insult to himself and defendant’s wife, and clearly he was not acting within the scope of his employment when so doing.
The judgment appealed from is affirmed, at appellant’s cost.