Goldman v. Yellow Cab Co.

WESTERFIELD, J.

The plaintiff, Milton Goldman, while a passenger in a taxicab belonging to the Yellow Cab Company of New Orleans, Inc., was injured as a result of a collision between the taxicab and an automobile belonging to Emile Burvant and, at the time of the accident, driven by a chauffeur in his employ, by the name o.f Duplesis.

The accident occurred on Mardi Gras night, March 1, 1927, at the intersection of Conti and Decatur streets. Plaintiff brought this suit against the taxicab company and Burvant in solido for damages.

The taxicab company defended upon the ground that its chauffeur was free from fault, the accident, according tq its view, having been entirely due to the carelessness of the driver of the Burvant car. Burvant denied that his chauffeur was guilty of negligence and interposed the legal defense that, at the time of the accident, Duplesis was not acting within the scope of his employment but upon a mission of his own.

After a trial upon the merits which was had some three years after the accident and, in which an unusual number of eyewitnesses participated, the trial court found Duplesis alone at fault and held Burvant responsible for the result of his chauffeur’s negligence, awarding judgment against him in the sum of $1,081. Plaintiff and Burvant have appealed.

Insofar as the question of fact upon which liability for the accident depends is concerned, after examining the voluminous transcript, we are convinced that the issue was properly determined below. We can add nothing to the analysis of the testimony given by the able trial judge in his reasons for judgment on this point and we adopt his views as our own.

The Ifegal question raised by the defendant Burvant and earnestly pressed by his counsel in argument and brief before us is not so easily disposed of. It appears that on the night of the accident Duplesis had been given instructing to convey Mrs. Burvant and her brother to a point on Iberville street near Decatur street in order that they might witness a Mardi Gras parade which was . to pass in that vicinity. When the car reached its destination Mrs. Burvant and her brother alighted and instructed the chauffeur to wait for them, ordering him to lock the switch and park the car. Instead of doing as he was told, Duplesis drove the car to a poolroom on Elysian Fields avenue where he met several friends with whom, according to the effect of certain testimony, he had a few drinks and, after sitting a while in the poolroom he, and his friends, entered the car and started back to the point where he had left Mrs. Burvant and her brother for the purpose of taking them home. When he reached the intersection of Conti and Decatur streets, about two city squares from his destination, the accident occurred.

It is the contention of counsel for Burvant that at the time of the accident Duplesis was out of character as an employee of Burvant and on his own responsibility using, without permission, his employer’s automobile; that in going to and in coming from the poolroom Duplesis was not the servant of Burvant, the relation of master and servant being suspended until he returned to the point of departure. It is insisted that the case is within the holding of Glass v. Wise & McAlpin, 155 La. 477, 99 So. 409, 410. In the case relied on, the facts were as follows: Wise & Mc-Alpin, a partnership, engaged in the real estate, grocery and feed business in the town of Leesville, Louisiana, employed a man by the name of Mitchell to drive their truck. On one occasion, without the knowledge or consent of his employer, Mitchell took the truck, and accompanied by a friend also named Mitchell drove a distance of two miles from town to get some meat for his friend. On the return trip because of the negligent handling of the truck an accident occurred as it neared the town limits, in which Glass was injured. Glass was denied recovery as against Mitchell’s employers because:

“The act of Mitchell, the servant, was entirely disassociated with his employment and his duties to his employer from the time he started on his mission until the moment of’ the accident. There was no relation between the errand or trip to Turner’s for the meat and the delivery of groceries to the defendant’s customers. There was plainly no departure — no temporary turning aside — from the master’s business to engage in a matter concerning the chauffeur, and there could be no resumption of the master’s business because the errand had not been completed. The chauffeur left the store with the truck, not to deliver groceries for defendant, but for the sole purpose of going to Turner’s for some meat for Yolney Mitchell. He made no deliveries and did not purpose to deliver any groceries on the out-going trip. When he got to Turner’s and received the meat he started on his return, not to engage in his employer’s business, but to complete his own business for Volney Mitchell — to deliver the latter’s meat.”

The court discussed Cusimano v. Spiess Sales Co., 153 La. 551, 96 So. 118, distinguishing it upon the ground that the facts were different. The holding in the Cusimano case was to the effect that a servant, who had turned aside frqm his employer’s business for a purpose of his own, and, after fulfilling that purpose, was returning to resume his master’? business was in the master’s employ while so returning whether he had reached the zone of his employment or the territory in which he was employed or not.

In the case of Bowles v. McGlasson, 5 La. App. 367, we held the master responsible upon the authority of the Cusimano case. The facts in the Bowles case were as follows: Riley Coleman, McGlasson’s chauffeur, was instructed to drive McGlasson’s nurse, Mrs. Gage (McGlasson being ill at the time) to her residence. Before reaching Mrs. Gage’s home a stop was made to purchase some apples to be taken to the Charity Hospital where Coleman’s wife lay ill. After buying the apples Coleman took Mrs. Gage home and then drove to the hospital where he found his brother and sister-in law. He invited his relatives tq get in his employer’s automobile and drove them to his cousin’s house on Dryades between Julia street and Howard avenue, where he remained until 4 o’clock in the morning, more than eight hours having, elapsed since he started from his employer’s residence for the purpose of taking Mrs. Gage home. Coleman then, with his two relatives whom he intended to drop on the way, got back in the automobile and started for McGlasson’s home. On the way an accident occurred which was held to be due to his negligence. We held McGlasson responsible for the acts of his servant, Coleman, in that case because “as soon as he left his cousin’s house and turned his car back towards its garage at defendant’s home, then he resumed his employment, for it was his duty to return the car to the garage at his employer’s. home and he was so doing.”

It is our opinion that the case at bar cannot be distinguished from the Cusimano and the Bowles eases. Indeed, the facts of the instant case are far stronger from the plaintiff’s standpoint than those of the Bowles, case. The departure of Duplesis during the short period that Mrs. Burvant was viewing the parade was but slight as compared with the numerous private errands of Coleman, the chauffeur in the Bowles case.

In this case, unlike the situation which obtained in the Glass case, the chauffeur started upon an errand of his máster and his private excursion was but a departure, consequently he re-entered his employer’s service when he started upon the return trip but in the Glass case the truck was taken out for a purpose disconnected with his employer’s business and it could not be said that Mitchell, the chauffeur in that case, re-entered his employer’s service until the truck was put back into the garage and his private errands completed.

The master’s liability attaches only where there has been a deviation from an enterprise originally undertaken in the interest of the employer.

"If the master is liable where the servant has deviated it must be where the deviation occurs on a journey on which the servant had originally started on his master’s business.” 39 C. J. 1303.

However, neither the Cusimano nor the Bowles cases which appear to us as ample authority to sustain the position of plaintiff in this case have gone as far in holding the master liable for the acts of his servant as Black v. R. I. A. & L. R. Co., 125 La. 101, 51 So. 82, 83, 26 L.R.A. (N. S.) 166. In that case plaintiff was injured by being run into, by an engine belonging to the defendant railroad which at the time of the accident, was in charge of two of its employees who had taken the engine out of the yard for their amusement and for no purpose in connection with their employment. There had been no initial movement of the engine upon an errand of the master but first and last for a purpose of the employees, nevertheless, the court held that in returning the engine (the accident happened on the return trip) to the depot they had re-entered their employer’s service for “conceding that in taking the train out of the depot merely for their own amusement, the men whom defendants had placed in charge of it were rendering no service to defendants and were doing nothing that they were employed to do, it can hardly be denied that their duty- to defendants as custodians of the property required that it should be returned to the place from which they had taken it.”

■ If the doctrine of the Black case has not been weakened by subsequent jurisprudence, and we know of no qualifying adjudication, there is ■ more than ample authority to sustain plaintiff’s position in this case, for it must be conceded that in order for the .plaintiff to recover in the Black case, it was necessary to go beyond the doctrine of the Cusimano and Bowles cases, the Cusimano case being largely predicated on the Black ease and the Bowles case on the Cusimano case.

As to the quantum, Goldman’s injuries are described as a contusion and swelling of the shoulder joint and a' fracture of the shoulder blade, the fracture extending from the upper border downward into the body of the blade towards the shoulder joint. The expenses incurred for services of a doctor and for drugs amounted to- $81. The judge below allowed $1,000 for pain and suffering. Under the circumstances we believe the proper award was made; consequently, and for the reasons herein assigned, the judgment appealed from is affirmed.