
    Sadie Smith KEMP et al., Plaintiffs-Appellants, v. James C. FOURMY et al., Defendants-Appellees.
    No. 11898.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 1972.
    
      Davenport, Files & Kelly, by Thomas W. Davenport, Jr., Monroe, for plaintiff s-appellants.
    Theus, Grisham, Davis & Leigh, by J. Bachman Lee, J. C. Theus, Monroe, for defendants-appellees.
    Before BOLIN, HEARD and HALL, JJ-
   HEARD, Judge.

From a judgment sustaining defendants’ exception of no cause of action and motion to strike, and dismissing plaintiffs’ amending and supplemental petition, plaintiffs perfected a devolutive appeal.

Plaintiffs are Sadie Smith Kemp, surviving spouse of Marvin A. Kemp, and the children of the marriage, Randall A. Kemp, Stephen L. Kemp and Don A. Kemp.

Defendants are James C. Fourmy, Four-my’s employer, Louisiana Midland Transport Company, Inc. and Louisiana Midland Transport Company, Inc., public liability insurer, United States Fidelity & Guaranty Company.

Plaintiffs filed suit for damages alleging in substance that Marvin A. Kemp was killed in a collision with a truck owned by Louisiana Midland Transport Company, Inc., and operated by one of its employees, James C. Fourmy. It was alleged that Fourmy was negligent, proximately causing the accident, and that he was in the course and scope of his employment thereby rendering Louisiana Midland Transport Company, Inc. and its insurer liable to plaintiffs, who requested a jury trial.

Plaintiffs then filed an amending and supplemental petition incorporating all of the allegations of the original petition and alleging in substance that (1) James C. Fourmy was born and raised in Monroe, Louisiana, and that Louisiana Midland Transport Company, Inc., when it considered employing him knew or should have known of his residence in Monroe; (2) that between 1962 and 1970 James C. Four-my was charged and convicted of speeding seven times and reckless driving five times, and that said convictions were part of the public records of Monroe and Louisiana, and were available to Louisiana Midland Transport Company, Inc.; (3) that said accident which killed Marvin A. Kemp was due to reckless operation and excessive speed in the operation of the vehicle owned by the employer, and (4) that Louisiana Midland Transport Company, Inc., knew or should have known of the prior convictions of Fourmy and that the employer was negligent in employing Fourmy as a truck driver and this negligence contributed to the accident and death of Marvin A. Kemp.

Defendants filed an exception of no cause of action and a motion to strike, both of which were directed to the amending and supplemental petition. Defendants stated that the amending and supplemental petition does not allege that Fourmy was operating a vehicle at the time of the accident with a revoked or illegal driver’s license. For this reason, defendants say the petition states no cause of action against Louisiana Midland Transport Company, Inc. Defendants also state that the allegations of the amending and supplemental petition should be stricken as they have no materiality to the issues of the case and are made solely as an attempt to prejudice the jury.

LSA-C.C.P. Art. 931 provides in part “ * * * No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” Thus, it is settled law that “[a]n exception of no cause of action is tried on the face of the petition, with all of its well-pleaded facts being accepted as true; the exception must be overruled if such allegations set forth a cause of action as to any part of the demand.” Texas Gas Transmission Corporation v. Gagnard, La.App., 223 So.2d 233, 236 (3d Cir. 1969).

Our law is to the effect that the owner of a vehicle is not responsible to a third party for the negligence of the driver of that vehicle unless he knew or should have known that the driver was incompetent. Morton v. American Employers Insurance Company, La.App., 104 So.2d 189 (2d Cir. 1958); Macaluso v. Watson, La.App., 188 So.2d 178 (4th Cir. 1966) writ refused, 249 La. 743, 190 So.2d 910 (1966); Asher v. Good, La.App., 198 So.2d 434 (4th Cir. 1966); Winzer v. Lewis, La.App., 251 So.2d 650 (2d Cir. 1971) writ refused, 259 La. 934, 253 So.2d 379 (1971).

In plaintiffs’ original petition a cause of action was stated against Louisiana Midland Transport Company, Inc. based on master-servant. In their amending and supplemental petition, plaintiffs sought to establish an additional cause of action based on the negligence of the owner of a vehicle in allowing an operator to drive the vehicle. There is certainly nothing in our law which prevents stating two causes of action against a defendant, and we are of the opinion that the court below erred in finding plaintiffs stated no cause of action in their second petition. Regardless of whether plaintiffs will be able to prove the various elements of this cause of action, they have stated that the owner of a vehicle knew (or should have known) that the operator of the vehicle was a continuously reckless driver. We find no merit in defendants’ argument that because Fourmy still had a driver’s license this excuses any possible liability on the part of the owner. Our law has never stated that an owner of a vehicle may entrust it to anyone with a valid driver’s license and escape responsibility. If an owner knows that a licensed driver is incompetent, he risks responsibility to a third party injured through that incompetence if he allows that driver to operate his vehicle. As plaintiffs stated that the employer knew Fourmy was continuously reckless and Fourmy caused the accident through recklessness, we think this states a cause of action against the employer.

We find no merit in defendants’ argument that the language in the petition should be stricken. The allegations of the petition are material and, in fact, necessary to state this separate cause of action. There is a possibility that the allegations will prejudice the jury somewhat. However, we are confident the trial judge and parties themselves will see that the jury is instructed that these allegations bear only on the negligence of the employer and not on the negligence of the driver on the date of the accident.

For the foregoing reasons, the judgment of the trial court sustaining the exception of no cause of action and the motion to strike and dismissing plaintiffs’ suit is hereby reversed and said case is remanded to the lower court for further proceedings.

Costs of this appeal are assessed to defendants-appellees.

HALL, J., dissents with written reasons.

HALL, Judge

(dissenting).

This is a suit for damages arising out of a vehicular accident based on the alleged negligence of the defendant driver, James C. Fourmy. Named defendants are Four-my, his employer, Louisiana Midland Transport Company, Inc. and the employer’s liability insurer.

The alleged liability of the employer is based on two theories. First, plaintiffs allege that the defendant driver was an employee of Louisiana Midland acting in the course and scope of his employment at the time of his accident, with the employer being liable for the employee’s physical acts under master-servant principles. Secondly, plaintiffs allege that the employer knew or should have known of a number of prior convictions of the employee for speeding and reckless driving and that the employer was, therefore, negligent in employing the employee as a truck driver and that this negligence was a proximate cause of the accident which resulted from the employee’s speeding and reckless driving.

Defendants answered admitting Fourmy was an employee acting in the course and scope of his employment at the time of the accident, thereby admitting its vicarious liability in the event of a finding that the accident was caused by Fourmy’s negligence. In response to the allegations of negligence based on employment of Four-my with knowledge of prior convictions of speeding and reckless driving, defendants filed an exception of no cause of action and motion to strike. The exception and motion to strike were sustained by the district court and plaintiffs appealed.

The reasons for this dissent are twofold. First of all, it is my view that the judgment from which the appeal was taken is neither a final judgment nor an interlocutory judgment causing irreparable injury and, therefore, is not appealable. Secondly, if the appeal is to be considered on its substantive merits, it is my opinion that the allegations relative to knowledge of prior convictions do not set forth a cause of action.

LSA-Code of Civil Procedure Article 2083 provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The judgment from which the appeal was taken in this case is neither a final judgment nor an interlocutory judgment which may cause irreparable injury. No possible injury could result to plaintiffs from the interlocutory judgment sustaining the exception and motion to strike as to one of plaintiffs’ theories of liability on the part of defendants. Defendants have, in effect, admitted vicarious liability in the event Fourmy’s negligence is proved.

LSA-Code of Civil Procedure Article 2162 provides in part:

“An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned. * * * ”

Although no motion to dismiss has been filed, this appeal can and should be dismissed by the court on its own motion since plaintiffs had no right to appeal from the interlocutory judgment. In Reeves v. Barbe, 200 La. 1073, 9 So.2d 426 (1942), the court, on its own motion, dismissed an appeal in a similar case where an exception of no cause of action as to part of the case was sustained. See also Matte v. Continental Casualty Company, 185 So.2d 842 (La.App. 3d Cir. 1966), in which the court held a judgment sustaining a motion to strike is not appealable.

The wisdom of the Articles of the Code of Civil Procedure limiting appeals to certain types of judgments and providing for the dismissal of appeals where there is no right of appeal is demonstrated by this particular case. The majority opinion passes on and decides an important issue of substantive tort law when the issue raised is purely academic and has no bearing or materiality on the ultimate outcome of this lawsuit.

In my opinion the issue raised by the exception of no cause of action should not have been considered by this court, but, having been considered, was incorrectly decided by the majority. I do not believe employing a person as a driver with knowledge of twelve convictions for speeding and reckless driving over an eight year period amounts to negligence which is a proximate cause of a subsequent accident caused by the driver’s speeding and reckless driving. This situation is different from the entrusting of a vehicle to one who is mentally or physically incompetent to drive or one who is not legally qualified to drive, such as a person who is intoxicated, or is below driving age, or has had his driver’s license revoked.

Plaintiffs rely primarily on this court’s recent decision in Winzer v. Lewis, 251 So.2d 650 (La.App. 2d Cir. 1971) writ refused, 259 La. 934, 253 So.2d 379 (1971). In Winzer, an employer was held to be negligent in entrusting a vehicle to an employee whose license had been revoked for driving while intoxicated, where the subsequent accident was caused by the employee’s intoxication. The Winzer case, which itself reached beyond any previous Louisiana case in establishing liability on the part of one entrusting a vehicle to another, is distinguishable from the case at bar at least as a matter of degree and of causal connection. Winzer is also distinguishable in that it involved a violation of a prohibitory regulatory statute designed for the protection of the public, which is not alleged here.

While I can conceive of circumstances relating to a man’s driving history bearing on his physical, mental, or legal competency to drive that might call for a different result, it is my opinion that hiring as a driver a person with twelve convictions over an eight year period does not amount to fault which is a cause of a subsequent accident. Plaintiffs’ allegations to this effect do not set forth a cause of action against the employer.

I respectfully dissent.  