
    CHARLES F. CLAIBORNE JUDGE.
    LUCIEN CUSIMANO VS EDWARD P. DURKIN.
    No. 7457.
    
      
    
   CHARLES F. CLAIBOHHE, JUDGE.

Plaintiff claims damages from defendant on the allegation that an automobile owned by defendant and operated by his minor ran into his wagon and injured it.

He alleged that at about 12 o'clock in the day his horse and wagon were standing on Rampart Street; "that an automobile owned by the defendant and operated by hie minor brother, with his knowledge and consent, without regard to;property rights, carelessly and negligently ran into thé horse and wagon of your petitioner from the rear" causing damages to the extent of $251.00 that defendant admitted his liability and offered to pay $100 which petitioner refused.

The defendant denied every allegation in plaintiff's petition contained, except such as he specially admitted. He averred that it was true that his brother was driving an automobile which was his, the defendant's, property; but that his brother was over twenty years old, and was a competent chauffeur; that the accident was unavoidable and occurred in the following manner; that defendant's brother was driving his automobile on Rampart Street, wood side, going in the direction of Canal Street; that when he reached a point about 150 feet from the corner of Governor Nicholís' Street, he saw a woman crossing.Rampart Street from the wood side to the River; that he blew his horn; that the woman had nearly reached the neutral ground when she suddenly retraced her steps; that in order to avoid running over her, his brother swerved to the right and in doing so unavoidably ran into the plaintiff's wagon striking the rear wheel.

The Judge of the District Court found in favor of plaintiff for the following reasons:

"... Despite the excellent and exhaustive argument tending to exculpate defendant from liability, I am of opinion that the defendant did not uae proper diligence in keeping his defective automobile off the street. He negligently permitted, if he did not consent to, its use by his brother who ie employed by him, and who should have enforced the rule said to have been laid down. I think defendant negligent and liable. The pleadings are sufficient, even though the charge of $30 hire for wagon was in fact hire for horse".

The defendant appealed.

We are at a lose to understand upon what theory it is attempted to hold the defendant liable. The petition alleges that the damage was caused by defendant's minor brother. There le no law that makes one liable for the acts of his brother, whether a major or a minor. The Articles of the Code 2317 to 2322 designate the persons for whom one is responsible, and among those we do not find that one is liable for the acts of his brother. In Miller vs Meche, 111 La., 143 (146) the Court said:

"... The disposition of the law in this respeot is exceptional and rigorous. It should not be extended. Those mho claim from the father or tutor for offenses committed by the son or ward must bring themselves Btrictly within the law".
"The legal responsibility for the acts of others oonstltutes an exception to the Common law and oannot extend by analogy to other oases than those expressly and limitatively provided by law". 3 Dalloz Codes An. p 774, No. 10, 12, 13, 16 et seq.; 39 Dalloz Rep. Leg. p 401 No. 500; 7 Merlin Rep. Im. p 240 Vo.. Delit § VIII; 11 Toullier § 258; 2 Sourdat § 753; 31 Demol.§ 595; 20 Laurent § 551; 4 Aubry et Rau p 767; 13 Duranton § 720; 13 Baudry § 2938.

Hor is the defendant liable because the automobile that did the damage was hie property, even though it was in the hands of his brother with his consent.

"Where a motor vehicle is being UBed by a mere licensed and is under his control, the owner is not liable no matter how gross may be his negligence". 28 Cyc p 39 § III; 147 N. Y. Supp., 1087; 133 S. W., 354; Davids Law of Motor Vehicles, Sec. 205, 207, 208; Hale on Bailments p 200; 6 C. J. Bailment p 1151; 163 S. W., 301; 144 N. W., 745; 163 S. W., 301; 144 N. W., 745; 145 N. Y., 708; 156 N. Y., 369; 142 Pac., 351; 71 Maine 432; 147 N. W., 1014; 138 N. Y., Supp., 119; 162 N. Y.. Supp., 992; 71 S. E., 492; 92 S. E., 295; 74 So. 422; 163 S. W., 594; 62 So. 28; 77 S. E., 1099; 111 N. E., 647.
"The reports are full of cases holding that where a servant, even with the master's consent,takes the latter’s car and while using it for his own purposes negligently injures a person thereby, the master is not liable". 200 S. W., 289, 1068; 169 N. Y. Supp., 490; 168 Pac., 863; 13 Cyc Depositary, 812; 10 A., 403. In Hart vs R. Rd. Co., 4 A., 261, the Court said: "... The responsibility of the defendants to the plaintiff, as we apprehend, depends not upon the ownership of the omnibus, but upon the faot that the damage was done by their servant, for whose acts they are sought in this aotlon to be made liable".

In Rousseo vs Gauche, 8 Ct. App., 219, we said:

". . . Wa do not think that the possession of the lessee is that of the lessor to the extent that the latter is responsible for the use which his lessee makes of the thing leased". 1 Baudry - Lac Louage § l041; 6 C.J., 1151 § 114.

Plaintiff argues that an automobile was declared to be a"d»ath-dealing" maohine by the Supremo Court in the case of Burvant vs Wolfe, 126 La., 787, and because of that fact, defendant is liable for having put it in the power of his brother to got possession of it and drive it. We have been referred to no authority in support of that proposition. But the decisions quoted heretofore would seem to be adverse to it. An automobile is only relatively a "death-dealing" machino. It is inherently absolutely innoououe; in that respect it differs from vicious animals; and therefore the rules of liability applicable to the owners of the latter do not apply. It is only when the machine ia put in motion, that it may become dangerouB, or "death-dealing", but then only in the hands of inexperienced or careless chauffeurs; then the danger results not from the machine but from the manner of driving it. So are eleotrio tramsways "death-dealing"; nevertheless, we have yet to learn that a railroad company was held liable for injury done by a car solely upon the ground that it was the owner. A razor, a shot gun, a pistol, and many other articles are "death-dealing" and yet the owner could not be held liable for the'damage caused by one to vhom he had loaned it, unless it waB alleged and proved that the borrower was not competent to use it and there was fault or negligence in lending it to him.

In the present case the defendant's brother was twenty years old and a competent chauffeur; therefore, there was no imprudence in allowing him to use the machine.

"The act of the father to have left at the disposal of his minor child a fire-arm which he used in a daraag-. ing manner must not necessarily be considered as an imprudence involving his responsibility, especially when the minor is twenty years old". 3 Fuzier-Herman, p 881 76.

The District Judge seems to have rested his deoision upon the fact that the machine was not in good condition, and "that the defendant did not use proper diligence in keeping his defective automobile off the street, and that he negligently permitted, if ho did not consent to its use by hiB brother who is employed by him". There might have been weight in that reasoning if the accident had been caused by the want of repair or by A. defect in the machine. But the evidence is that the accident was oaused, as stated in the nnswei, by a woman getting in the way of the machine and by the driver suddenly swerving to the right to avoid her. The condition of the machine had no connection with the accident. The accident would have happened just as well with a machine in perfect running order.

The plaintiff finally attempts to hold the defendant on the ground that this brother was his employee. The evidence is that the defendant was in the automobile hiring business; that his brother was not the chauffeur employed to drive the machine; that his brother drove it only in the absence of the regular chauffeur; that the machine had been laid up because it was out of order; that on the morning of the accident defendant's brother was using the machine to take his own clothes to the laundry and not for the benefit of the defendant nor in pursuit of his business

It is true that these facts established that the defendant employed his Brother; but another essential fact must be established to make the defendant liable on the theory of master and servant. It must be shown that the damage was caused by the servant “in the exercise of the functions in which «they are em- ^ / '>yc. % 'tvf IN', • ployed". C. C. 2320. The theory of the master's liability is his fault in making an improper selection of an incompetent servant to carry on his business.

In the case of Brenner vs Ford, 116 La., 550, defendant 's horse driven by hiB driver ran over and kilUed a child. The Court said that at the time of the accident the driver was driving the horse "for his own pleasure and not in the discharge of any duty imposed upon him by hiB employment as a servant". See also 127 N. Y., Supp., 220; 93 N. Y. Supp., 161; 134 N. W., 14; 5 Ct.App., 297; 177 Ills. App., 367; 108 N. E., 153; 107 N. Y. App. Div., 120; 94 N. Y. Supp., 771.

"In order to hold the employer liable, the damage must be done through the neglect of the slave hired while he is actually engaged in the functions or duties intrusted to him". 18 La., 490.

The test of the master's liability for damage caused by his servant therefore is: was the servant performing his employer's work, or was he in the discharge of his duties as a servant at the time the damage was caused? If he was, the liability of the master attaches; if he was not, the master is not liable. In other words the liability of the master arises only whan he is doing his work through the. servant qui faoit.psr alium faoit per se - and the master is liable for’ the manner in whioh the servant does his work, as if it was being done by the master himself.

"The test by whioh to determine whether the master is liable for the tortious acts of hie servant,, is not whether it was Bone during the existence of the employment, that is to say, during the time covered by the employment, but -whether it wsb done in the prosecution of the master's business". Upon this subject it.has osen said; In determining whether a particular act is done in the course of the servant's employment, it is proper first to Inquire whether the servant was at the time engaged in serving his master. If the act-oe done while the servant is at lioerty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time the injury was inflicted, acting for himself and as his own master pro tempore. the master is not liable. If the servant steps aside from his master’s ousiness, for however short a time, to do an act not connected with this business, the relation of master and servant ie for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities". 1 Thompson on Negligence 526, p 489; 28 Cyc, 1525 § 3, p 1536 (c).
"If a driver, turns wholly aside from the master's employment and goes on an independent journey, wholly foreign to his employment, for a purpose exclusively his own, the master is not liable for his acts during Buch time. Tot instance, if the servant takes out the master's horse or team, antomobile or hand car for his own pleasure or purposes, when not acting for the master, or after he has been ordered to put them in the' stable, the master is not liable for injuries received by third persons while the servant is thus aeting for himself." 26 Cyc,p 1536 (c)
"Where a servant employed in the delivery of goods by wagon drives out of the way of his .route for the purpose of visiting his home, the master i's not liable for injuries to a child caused by the servant’s negligent driving as he left his home", id note 16. -
"In order to establish liability, the persons must not only be general employees df the owner but must be in his business at the time the injuries are caused and not merely in their own recreation and mleamim". 28 Cyc p 38 note 29; 56 Ga., 274; 1 Hill, 480; 47 N. Y., 122; 7 Am, Rep., 418; 2 N. H., 548; 37 Mich., 205; 71 Me., 432; 36 Am. Rep., 336; 45 Conn., 44; 29 Am. Rep., 635; 31 Minn., 351; 47 Am. Rep., 793; 73 N. Y., 543; 177 Ills. App., 367; 108 N. E., 153.

The evidence in this case falling to show that the accident occurred while the defendant's employee was in the discharge of his duties as suoh, the employers incurred no liability.

It is, therefore, ordered that the Judgment herein be reversed and avoided, and that there be Judgment in favor of the defendant rejecting plaintiff's demand at his coot.

April 3rd., 1919.  