Alfrеd B. WILLS, Individually, and on behalf of his minor daughter, Marion Wills, v. Melvin F. CORREGE, and Columbia Paper Co., Inc.
No. 889
Court of Appeal of Louisiana, Fourth Circuit
January 7, 1963
February 4, 1963
Certiorari Denied March 25, 1963
148 So. 2d 822
Weldon A. Cousins, Loeb & Livaudais, P. A. Wittmann and Marcel Livaudais, Jr., New Orleans, fоr defendants-appellees.
Before SAMUEL, TURNER, and JANVIER, JJ.
SAMUEL, Judge.
This is an appeal taken by the plaintiff from a summary judgment dismissing their suit as to Columbia Paper Company, Inc., one of the defendants. The motion for summary judgment was heard by the trial court on two occasions, the seсond for the purpose of giving plaintiffs a full opportunity to present all of their evidence.
The record consists оf the pleadings and certain discovery depositions and reveals the following facts: Plaintiff, Alfred B. Wills, individually and on behalf of his minоr daughter, Marion, filed this suit against Melvin P. Correge and Columbia Paper Company, Inc. for damages resulting from an accident in whiсh a station wagon driven by Correge struck and injured the child. Correge was employed by Columbia as a salesman and resided in the City of New Orleans where the latter‘s place of business was also located. On the day of the accident he had rеturned to Columbia‘s office at about 4 o‘clock in the afternoon and there concluded his business for the day. The accident happened while he was on his way home, traveling the route he normally used for that purpose.
Correge рersonally owned the station wagon involved in the accident, worked solely on a commission basis and received nо mileage allowance or reimbursement for automobile gasoline or expenses. However, he did receivе what the record describes as a $50.00 “draw“, that is, $50.00 each month from which no taxes were withheld. This amount was not in addition to the commissions he received but was deducted from earned commissions and the only difference between the “draw” and the balance of his commissions was that no taxes were withheld from the former. As
Correge regularly used his station wagon in the course of his employment in calling on custоmers during the day and occasionally in the evenings. He did not have a set territory but was free to call on whomever he рleased within the city and the metropolitan area. Columbia does not employ salesmen who do not have a рersonal automobile.
The only question presented for our determination is whether or not, under the doctrine of resрondeat superior as expressed by
The contention of the present plaintiff is that, considering the amount of travel required by the nature of the employment and the area which had to be covered, the use of thе employee‘s automobile was either required by the employer or so necessary to the conduct of the lаtter‘s business that Columbia should be held responsible under the doctrine of respondeat superior. We cannot agree with this contention.
While
The general rule is that an employee, in going to and from his place of employment, is not considered as acting within the scope of his employment to such an extent as to render his employer liable to third persons for thе employee‘s negligent acts. Boyce v. Greer, La.App., 15 So. 2d 404; Sedberry v. Western Union Telegraph Co., La.App., 9 So. 2d 73; Whittington v. Western Union Tel. Co., La.App., 1 Sо. 2d 327; Gallaher v. Ricketts, supra; Cado v. Many, La.App., 180 So. 185. This is true even when the vehicle used for transportation by the employee is owned and furnished by the employer except where there is some distinguishing and additional fact which causes such travel to benefit or serve the employer or his business. Harding v. Christiana, La.App., 103 So. 2d 301; Boyce v. Greer, supra; Cado v. Many, supra.
Plaintiff relies principally upon a recent case on the subject, O‘Brien v. Traders And General Insurance Company, La.App., 136 So. 2d 852. But O‘Brien reaffirms the established line of jurisprudence and the holding of that case does not support plaintiff‘s рosition. For the case held that an employee who had an accident while driving to a meeting which his employer оrdered him to attend and who was paid mileage for the trip was in the scope of his employment while on that particular trip. And the opinion stated (136 So. 2d at page 864):
“Conversely, where an employee is not compensated for his time or is not supplied with a vehicle by his employer to go to and from work, it is clear that at that time the employee is not engaged on a mission for his master but is, so to speak, on his own.”
Here the vehicle was not furnished, nor were its expenses paid, by the emplоyer. The employee was not on a mission for his employer. He had completed his work for the day, was no longer under his employer‘s control, and was free to go to his home or to any other place of his own choosing.
For the reasons assigned, the judgment appealed from is affirmed; costs to be paid by plaintiffs-appellants.
Affirmed.