
    NO. 8651
    COURT OF APPEAL PARISH OF ORLEANS
    ANNIE PERKINS versus ROY M. STRECKFUS
   Dinkelspiel; J.

Plaintiff in this suit alleges thot she was employed upon the steamboat Oopitol, as a meld, end thi-t on September 38th, 1930, wt-e engaged by her employer, Rey Streckfus, Oeptsin of the steamvbcit Capitol tc proceed tc his residence where petitioner wes to ido \oiiie domestic work under order of defendant's wife.

The petition overs further th"t she was told by defendant that she would be taken to defendant's home in his automobile truok, and th';t while on her way to defendant's residence under defendant's orders, she w.-s riding in defendsnt's truok, and while surasiKRitiKxg proceeding with the chauffeur,in the employ of defendant, the said chauffeur of defendant operating his automobile on North Peters Street ,;,t the intsr.reotion of Bienville, at about nine thirty in the morning on September 38th, 1930, collided with a, float at e ••id intersection of North Peters end Bienville Streets. She alleges 'Iso (h't she sustained injuries due to the negligence of le'■-rd’-nc' " emolo y-e, which consisted of a sprained baok and hip jcint And intern;.'1 abdominal injuries and that she wcs confín a u to her home from September 33th, J920, until November 10th 1?<20 under 3= re of i physician, and that she is still suffering from thaKffaak the effects cf sc3d injuries :nd that said inns injuries were brought -"bout solely due to the negligence of defendant's employee who h^d ”mpls time to eve id colliding with the scl! movini vehicle which wee crossing the street in front of defendant's cutomcbile truck, but said chauffeur was bent upon crossing in front of the ether vehicle, which h'-d the right of way Alleging further th«t she suffered excruciating pain and agony from the effects of said injuries and was forced to employ and have the attention of a physician during the time she w's confined so her room, and due to said injuries she was totally incapacitated from performing her employment as maid md that her "edio&l bill amounted, together with her drug bill, to fifty dolíase, and for th? loss of employment from the dates heretofore mentioned, amounted to one hundred dollars, and for the ps.ln :>ni suffering' she incurred she asks for the sum of Twenty Nine hundred dollars, end preyed for e judgment for #3050.00.

To this petition there were .filed, exceptions, that the petition was vague and indefinite, and disclosed no right or cause of --aotion.

Subsequently there was filed by plaintiff, a supplemental petition, which enters at length and sets forth more speoifiefe&ly the allegetion3 of her original petition, giving the name of the owner of the truck and the float, going into dets.il as to the nature of her injuries.

The answer of the defendant denies the allegations of plaintiff’s petition, denies that plaintiff was employed by him 8,s maid on board the steamboat Sydney, but admits thet he was captain of said steamboat, but denies that he was plaintiff's employer. Denies thet on the 38th day of September, 1930 or any other date, he directed plaintiff to go to his residenoe to perform domestic or any other, work for defendant's wife, .and asserts the facts to be that the plaintiff was employed in the capacity of a lunch counter girl on the steembo-t Sydney, whose home port is St. Louis, Missouri, and is owned end operated by the Streokfus Steamboat Line, an Illinois corporation; that defendant was an employee of said steamboat line and the captain of said steamboat Sydneyj that neither at the time alleged in the plaintiff's petition nor at any other time, was plaintiff employed personally by defendant, but at all times while working on said steamboat Sydney she was in the employ of the corporation whioh owned and operated said steamboat. Defendant alleges,that on the date of the- said aooident he resided with his family at Ho-. 3330 Eeolen£.de Avenue in the city of l¡rew Orleans and was then about to move from said residenoe to 3935 Ooli.seum Street, and that on the day preceding the aooident, defendant's wife visited the steamboat Sydney and that while aboard, the boat, plaintiff learned that he and his wife were going to move and asked defendant's wife if she might come ou$; to the house and assist her in getting ready to move, and hie wife.oame to defendant asking him if it would be alrigjit. if plaifetiff qarne to defendant's residenoe the following day and assisted her ia her prep rations to move; defendant made no. objection, but said to let pic intiff clearly know that it wes not compulsory upon her to go,end subsequently gave plaintiff the number .of defendant's residence, and directed her to take the Esplanade Belt osar, gét out at the 0300 block, to which plaintiff agreed; and alleging that defendant violated the indtruotlons so given by induoing the ohauffeur of the truck, whose duty it was simply to oarry -dvertising matter ror the steamboat Sydney, to drive plaintiff to defendant's residenoe, which he did without any authority; thst said oheufffiur was not authorized to use said truok for any purpose except the business of the steamboat, he had no authority to drive plaintiff to defendant's residence or anywhere else, denies that he ever htd eny conversation with.plaintiff in reference to the sutomoblle, and avers that the aooident r -. due entirely to the contributory negligence, heedlessness md need of care on the part of plaintiff; end prays for dismiss"! of plaintiffs action.

The testimony, of the plaintiff substantially asserts, amongst other things, thst Mrs. Streokfus, defendant's wife’ askdd her if it would be alright to go to her house the next morning, giving her the number of her home and the street, and giving her f Iso the. directions for getting there; said there would be a lord oar driven by one Abe Lyons, who would take her out there; she testifies she w s not femilisr with the streets of the city of Bew Orleans, end also goes on to testify the nature of the accident in question end the date thereof, the time that she was in bed, attended by a physiolaa, giving his neme; she describes the truok and says it wes used to~»oarry advertising matter and', ether things to and from the steamboat, it was not a passenger fmtomobile; she positively swears that she was not'instrdoted • by- either the captain or his wife to take the street bar, and that that fact was not mentioned to her at all; she svrears to her injuries and the effect thereof.

The first witness- introduced by plaintiff, a Mr. Mangel'; describes the accident '-'nd hew it occurred, he knows nothing ’'-boWt the employment of plaintiff nor the orders -she rsoeived from defendant.

A Ms. Hammond, -nother witness for 'oV intiff "-Iso witnessed the accident from f blacksmith shop, and goes on to describe it; knows nothing of plaintiff' i-jur: ■; c nor j nvthing further ebout the c:,se one v;£.y or «nether.

Mrs. Ethel Young, -noth'r witness for -V intiff in her ex> .Mination in chief nmongst other s r- tevents mode, s«ys th t defendant's wife «ske-d pi---intiff to call -t her house to do some work aud told her wh't o- r to o -teh so 3he oculd get to the house, for nine o'clock in th® morning, c-nd th! t pi'inti if sti ted in reply that she oculd not find th? place, -.nd then it \r s that she further ss.id i-fter asking her husband, th't pi; intiff oculd oome in the truck with Abe, end rlr t ill th' t she knew shout Shis P'rtioul-r oirouias 'f-noee; the next time th't she smv pleintiff she found her in b---d; nt the time in que-tion she r-- a working for defendant's company, a-e orshier.

On orces er-¿in1 tion:

Q. You stated rf-ther 'csitivelv in your directex! min- tion th't M-a. Streokfus did tell this women how no .get to h-;r Es_;.;.-.:'cle Avenue home, and told her to t-ke the str-et c*r? A. Ye-3 sir, she did tell h-:r to take the street o?r.
Q. And you testify that Mrs.. Streokfus insisted ucon h r t-.king the street o'-.r? A. I thin-, she did, yes 3ir.

And several ,answer- to questions of like effect were identical v/ith whs-t we hs.ve heretofore quoted. Toting her entire testimony, she swe*rs th-'t >1: intiff vs ordered tc take the street or-r end not the auto.

The first witness in bsheIf of defendant is ■> brother, and he ts'-tifies that the Streokfus Steamboat Line, a oerpox; tion ooer; ting steamboats,operated the boat in question, a'nd Sh'-t his brother wfs the captain of the boat; th-t the oerpor tion was organised under the laws of the State of Illinois, vnd that all of the employees, amongst whom was the defendant, were paid hy the corporation. In this conneotlon this witness further testifies that Abe Lyons wos also employed by the oorportion, that his salary was paid along with the other employees,, by the company.

He was asked:

Q. NoüAt the time they refer to, September, 1S20, w-.s there any automobile being used by the srs'-mbcat Sydney, in the city of Mew Orleans? A. We have a c»r here, & Ford make, it war. on advertising truck, the steerabost Sydney wot operated by defendant's corporation in the afternoon, sightseeing on the harbor, and night trips about the harbor for dancing, and the truck was used for carrying billboards and things of tlv-t sort, ■- dvertising; end Lyons wps'th- chauffeur of thi-t truck; defendant h d no interest in the truck.

Mrs. E. E. Streckfus, wife of the defendant, testified as to where she lived in Seotembsr, 1930 , 2330 Esplanade Avenue, and after.vords moving to Coliseum Street. She »> s a sked:

Q. In moving, did you hive eny oocession tr sprek to a •.-ornan by the name of Annie Perkins, this woman here, ‘bout assisting you in any way in the moving? A. Yes sir.
Q. State all that took place between you and this woman?
A. Every time that I would go to the steamboat Sydney, Annie Perkins would went to oome and help me, and v/he she knew that I w s going to move she wented to oome and help ms, and finally I s&id if she wanted to she cculd oome, if it did not interfere with heir work c-n the bo’-t, end. she should be there between seven thirty end eight o'clock, and she --.'anted to know where the place w> s ‘nd I told her it w. s Esplanade Avenue, end I wrote it on 6 piece of aí-per for her, to tf-ks the Eta-lan* de Eelt car and get off * t the 3200 block, I described cue house end everything, and instead of th&t she got on the truck sgainst the wishes of the chauffeur.
Q. Now Mrs. Streckfus, did you at any time- on the stesmboat^Sydnijy tell this women in Mrs. Young's presenos or anyone slss's presence to take the truok 1 n the morning end. go out to your Esplanade Avenue home? A. I certainly did not.
Q. You did tell her to go cut and take the street oar? A. Yes sir, and I wrote the street for her to get off at and the name of the street oar line; I never thought anything about taking the truok, I told her to take the Esplanade Belt o«i and get off at She SSOu block.

She knew nothing of the injury to plaintiff, except what she was told. Shb swears that Abe Lyons, the chauffeur was in the employ of the steamboat company end not that of her husband.

Yhe defendant himself, R. M. Streokfus, testifies that he was oaptain of the steamboat Sydney at the time this accident o.courred, and that the steamboats 'Oapitol and Sydney were the property of the Streokfus Steamboat Line, and the domicile of the company was in St. Louis, Missouri, and it was incorporated under the laws of the State of íllinois; that the company wos operating on the rive'r oarrylng passengers, harbor excursions, in. the city of Hew Orleans, making afternoon and night trips; these trips were advertised in the newspapers, also by handbills an'd further by an auto truok with three signs, one on each side and one on the back, it was a covered truok, had one sect, and defendant says he had no ownership in the truok; Ahe Lyons wwas the ohn-uffeur, had been such four of five months before the accident. In oonneotion with his wife having asked plaintiff to go to her house to do some work he was asked:

Q. What was that conversation? A. My wife said that she h»d been requested by plaintiff if she could come out to the house to do some work for her, and she wanted to know if th-t would be alright, if it did not confliot with the company's affairs, I did not have any right to tell her that she could get off and do any work for me personally, but if she wanted to go of hex own volition, th-'t she oould do it, and I insisted on my wife giving her the address, but not to use the truok, I never authorised my wife or plain**' to wxii ride on the truck.

On cross examination he testifies th“t the truck in question w 3 bought in St. Louis, and being shown s certified copy from the Secretary of State, that the license w--'s issued end he was declared to be the owner of the o-"r in questions, his answer ws.s: "I deny that I vw>s the owner of the car," and the question again being asked him, he replied "Yes sir, this oar was paid for by the steamer Sydney, the bfnkbcok will show that.

Q. You claim that you did not Bake this si.pplios.tion? A, Xtas I ax* olalm th-t I msde the application for the license, but so far-'as the ownership of the car is ooncemed, I dBny that.

He knows nothing of the injuries to plaintiff except whet he had heard.

There is in evidenoe in this cese, a ocoy of the application for registration of s Ford touring o!'r, giving the place where the oe.r w»e purchased, the number of cylinders, also the number of the car, and that the oer was to be left at 3330 Esplanade Avenue; Rey H. Streoífus w- s the owner, residence address 3330 Esplanade Avenue, business address, Steamer Sydney, canal Street, in the City of New Orleans. And in this connection the testimony of the witness who had entered the same, certified that he issued same as his official dorickaa« duty.

The evidenoe in this case satisfies us that defendant was the captain of the steamboat Sydney at the time this aooident occurred, that the steamboat was the property of the Streckfus Steamboat Line, an Illinois corporation, end that the registration of the truok in the office of the Secretary of Stele simply raised the presumption of ownership which could be- rebutted by proof.

In order that one claiming to have been injured by an automobile driven by an employee of the owner, may recover therefor¿ she must show the relation of master end servant existed between the owner and the person .in charge of the oar, at the time of the aooident, and that the servant was engaged in his master'? business and vr-s a.cting within the scope of hie employment.

Brenner et al vs. Ford, 115 La. 550.
Civil Code, Art. 2330.
Atkins vs. Points, 148 La. 958.

"An owner of ?n automobile is not liable for damwo-ss resulting from the negligence of someone else in the operation of ?. oar .without proof or re‘-sonable presumption that the person who operated the c-.-r was ths employed or authorized by the owner to opt-r^te the O'-r.

Rushs vs. W. G. Coyle Co. et als, 149 La. 31.

It h"s frequently been decided by this Court, siso by the Supreme Court of thi3 St'.te, when ce-aes ‘involving issues of fact, conflicting testimony, and the credibility of witnesses, the verdict of the jury will not be disturbed, unless manifestly erroneous, because the jury saw End heard the witnesses, and therefore were in v■ better position to judge of their credibility than is an appellate oourt.

Black vs. Liquidators, Henry Block Co. Ltd. 139 Court of Appeal, 78.
Levy vs. R. R. Co. 123 La. 198.
Williams vs. R. R. Co. 121 La. 138.

The evidence 3ntisfies us further that plaintiff was Instructed by th«= wife of the defendant ?nd given the directions sfxhx to her home on Esplanade Avenue, find ordered to take the street car to re»ch her rjsidenoe; this w-'-s confirmed by the defendant and the f-ot that pl-intiff nevertheless undertook and did go in the --uto. truck, driven .by another employee of ■ defendant’s company, End not of defendant, without any authority from defendant, and without his knowledge, ?-nd did attempt to prooeed to defendant's home, does not for th‘-t reason make the defendant liable in iJE.se of an accident such • s this.

In disobeying the instructions of defendant and his wife, which the" record amply demonstrates plaintiff did, she took her own risks, add no matter what the nature of the ac cident, and the injuries she received, were produced through her own fault, end defendant oan not be held liable therefor.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court a,quo be and the same Is hereby affirmed, plaintiff to pay costs of both Courts.

-Judgment affirmed-  