#### COX v. SHREVEPORT PACKING CO. (FIDELITY & CASUALTY CO. OF NEW YORK, Intervener).

No. 6925.

Court of Appeal of Louisiana, Second Circuit.

July 5, 1946.

Rehearing Denied Oct. 31, 1946.

Certiorari Granted Jan. 24, 1947.

*618Cook, Clark & Egan, of Shreveport, for appellant.

Booth, Lockard & Jack, of Shreveport, for appellee.

Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for intervener-appellee.

McINNIS, Judge.

Defendant is appealing from the verdict of the jury and judgment thereon awarding plaintiff $12,520.95, and the intervener $1,410.50, to be paid out of the award to plaintiff.

There is no contention as to the right of intervener to be paid in the event the judgment in favor of the plaintiff is affirmed or any award to that extent is made in his favor.

On or about October 4, 1941, between 8 o’clock p. m. and 9 o’clock p. m., plaintiff and one John Mercer Sentell, Jr., were involved in an automobile accident near Oil City, in Caddo Parish, Louisiana, as a result of which plaintiff’s automobile was so badly damaged as to amount to a total loss, and he sustained severe injuries. He alleges that the accident was caused solely by the negligence of said Sentell, and he specifies such negligence as follows:

(a) He was under the influence of intoxicating liquors;

(b) That he did not have his car under proper control;

(c) That he did not keep the proper lookout;

(d) That he was driving on the wrong side of the highway coming directly towards your petitioner, as above set forth;

(e) That he was driving at a reckless rate of speed, which your petitioner, on information and belief, alleges was in excess of 60 miles per hour.

In original and supplemental petitions, he demands judgment for $17,585.95, itemized as follows:

Loss of automobile $ 800.00

Doctors and hospital bills 484.95

Dentist Bill 800.00

Loss of earnings 1,000.00

Loss of future earning capacity *4,000.00*

Injuries to his head, face, and hearing 7,000.00

Injuries to his kidneys 1,000.00

Injuries to his nervous system, etc. 1,500.00

Pain and suffering, (past, present, and future) • 1,000.00

Total $17,585.95

This suit was filed May 5, 1945, some three and one-half years after date of the accident. In order to negative prescription plaintiff alleged that on June 4, 1942, he filed suit No. 85,162, on the docket of First Judicial District Court, against the said Sentell for damages caused by Sentell’s negligence which suit is still pending. That on May 20, 1945, he discovered for the first time that Sentell was employed by the Shreveport Packing Company, and was on an errand and mission for said company at the time of the accident. That Sentell and the Packing Company are joint tort-feasors and solidary obligors, and the interruption of prescription as to Sentell interrupted the running of prescription as to this defendant.

After the trial of Suit No. 85,162 against Sentell, which has not yet been decided, the plaintiff undertook by supplemental petition to implead the Shreveport Packing Company in that suit as a defendant. But on objection that the supplemental petition came too late after the trial of the case, and that it changed the issues, it was disallowed.

The present suit was first met with a plea of one year prescription, based upon Article 3536, R.C.C. This plea was overruled. Defendant then filed a plea in--bar and a plea of vagueness. The plea in bar is leveled at the fact that in the original suit against Sentell, no claim was made for loss of the automobile and only $300 claimed for dental bill, and that in electing to hold Sentell for only part of the damage he is barred from asserting his claim for damages against the Packing Company for damages he is seeking to col*619lect from Sentell. The plea of vagueness was answered by a supplemental petition. The plea in bar was overruled.

Defendant then answered, admitting that the accident occurred and that Sentell was employed by it on October 4, 1941. It admitted the filing of suit No. 85,162 on Tune 4, 1942. All of the other allegations of the petitions on which plaintiff seeks to recover are denied, including the allegation that Sentell was engaged in the course and scope of his employment at the time of the accident. It is alleged affirmatively that the collision was due to the negligence and fault of the plaintiff as follows:

(1) That he was driving his car at the excessive rate of speed of 50 or 60 miles per hour, which was in excess of the speed limit on the highway at the point of the collision;

(2) That he was driving his car upon his left side of the road;

(3) That he, just before the cars met, swerved to his left, into the car of John Mercer Sentell, Jr.

(4) That he, after realizing that a collision was imminent, could have avoided the same by pulling off the road, but he failed to do so; that he had the last clear chance to avoid the accident and failed to act.

Defendant sought to call Sentell to indemnify it for any loss it might sustain. Exception of no cause and no right of action to this tall in warranty was sustained and that phase of the case dismissed.

The record in (this case discloses' by a clear preponderance of the evidence that the proximate cause of the accident was the negligence of Sentell. Specifically, the evidence establishes that at the time of the accident, Cox was driving north on the paved highway, the concrete part of which is 22 feet wide with wide sloping shoulders on each side. That he was driving on his right side of the highway with his lights burning and at a speed not in excess of 45 miles per hour, and that Sentell was driving south, meeting Cox, and that when he was some 100 feet or 200 feet away from Cox, he pulled his car over on his left-hand side of the highway, and that Cox slowed his car down as much as he could and put his two right-hand wheels off of the concrete on to the shoulder of the road. There is a slight curve in the road at this point, but it did not prevent the driver of either car from seeing the other car approaching. But, of course, on account of darkness, neither driver could see inside the car of the other.

Defendant, in argument and brief, contends that inasmuch as Cox admitted that he saw Sentell driving over into his lane of travel when he was from 100 to 200 feet away,, he should have driven his car further to the right and even off of the concrete part of the highway onto the shoulder, and that he could have, by so doing, avoided the accident and resulting injury; that he had the last clear chance to avoid the accident, and therefore is not entitled to recover damages.

We had occasion to examine the jurisprudence on the subject of the last clear chance in the recent case of Howze v. Hollandsworth, La.App., 26 So.2d 381, where many of the cases on this subject are discussed. Under the facts disclosed by the record in this case, we are of the opinion that plaintiff cannot be denied recovery on the contention that he had the last clear chance to avoid the accident and resulting injury.

It seems clear to us that the plaintiff is entitled to judgment in some amount against the defendant unless either the plea, of prescription or the contention that at the time of the accident and injury Sentell was not acting in the course and scope of his employment with defendant is sustained. We have concluded to discuss the last defense first.- If we sustain that defense, the plea of prescription need not be passed on.

The record in this *<*case discloses that 'Sentell had been' employed by defendant at a monthly salary from about 1939 to and including the date of the accident. His duty was to buy cattle for the defendant, and in carrying out this duty he attended cattle auctions at various places, including Texarkana, Ark. According to Mr. Dickson, manager of defendant company, Sentell was more or less on his own. *620He was not given directions as to what route he should take in going to the various auctions. He was furnished by defendant a car to drive but at times he drove his own car. On the day of the accident he was driving a Buick automobile that belonged to him.

Whenever Sentell used his own car, the company furnished him gasoline and he had filled the tank of the car with gasoline at the plant before leaving for Tex-arkana.

Several days before the accident Sentell and a friend of his, named Ernie Rogers, made an arrangement for Sentell to pick Rogers up at his home in what is called Hollywood, just outside of and southwest of the city of Shreveport, to accompany him to Texarkana. Rogers, until a short time before the date of the accident, had managed the Texarkana auction and knew the people there, and the record discloses that he was very friendly with. Sentell and had helped him in buying cattle on other occasions, or at least Sentell says he had taken Rogers’ advice at times. It is not shown that he helped him any on the day of the accident. This may explain why Sentell was taking him along that day. It is not shown that defendant had any knowledge of the relations between Sentell and Rogers.

Some time during the forenoon of October 4, 1941, Sentell drove to the home of Rogers, picked him up and took him to Texarkana with him. After the auction was over, about 6 o’clock in the afternoon, they'visited with the people who operated the auction and had something to eat at a restaurant, and then left to return to Shreveport, first to Ernie Rogers’ home, and then to Sentell’s home, which is some six miles north of the city of Shreveport on Highway 71.

It is the contention of defendant that at ths time of the accident Sentell was on his way to take Rogers home, therefore had deviated from the most direct route to his home, and for that reason was not on any business for his employer, but was on a private mission of his own, taking Rogers home.

The record discloses that there are two routes from Shreveport to Texarkana, one being highway 71 and the other highway 8. It is shown that the route over highway 71 is some ten .miles shorter than the other route, and as Sentell’s home is some six miles north of Shreveport on Route 71, the distance from Texarkana to his home over highway 71 is some 23 miles shorter than the route he was using at the time of the accident. (The record discloses that some ten miles of the highway 71 was at that time a gravel road, the other part of the road being paved.)

Highway 8 at that time was paved the entire distance. It was probably just about as near to go from the home of Ernie Rogers to Texarkana over highway 8 as over highway 71. Anyway, that is the route taken by Sentell on the trip to Tex-arkana. It is also the route that he selected for his return trip for the purpose of leaving Rogers at his home.

Sentell had visited the auction before the visit of October 4, 1941. He testified that he used highway 71 when leaving from his home to go tó Texarkana, but that if he left from the plant of the packing company, he used the pther route. He also testified that if he had been going directly home on the date of the accident, he would have gone down highway 71 for the reason that it is a shorter distance.

After careful study of the facts of this case as disclosed by the record, and of the authorities cited by both plaintiff and defendant, we have reached the conclusion that at the time of the accident Sentell was on a private mission of his own, not engaged in the course and scope of his employment, and that for this reason defendant in this case is not liable. It is probable that if the accident had occurred after Sentell had delivered Rogers to his home and was on, the way to his own home, there might be liability.

In Vol. XIV, Tulane jLaw Review, 72-81, is an able discussion by Mr. Hollings-worth B. Barrett of the Shreveport Bar, of the doctrine of respondeat superior, titled “The factor of route in the doctrine of re-entry in Louisiana”, in which he *621cites and explains many of the cases bearing on the question to that date (December, 1939). We cite the article and the cases without quotation, as authority for the conclusion we have reached.

Other cases decided since include Pearce v. United States Fidelity & Guaranty Co., La.App., 8 So.2d 743, where an exception of no cause and no right of action had been sustained in the District Court. The exception was overruled by the Court of Appeal, Second Circuit (Judge Hamiter). The case never came back on appeal again. So far as we see, this case is of no importance here, other than it cites interesting authority.

Braud v. Vinet et al., La.App., 5 So.2d 200, is authority for holding that if an employee deviates momentarily from his employment to go on some mission of his own, or to do something that is not connected with his work, and during such deviation, injury is caused by employee’s fault, employer is not answerable, since employee is beyond the course and scope of his employment.

The case of Kruckeberg v. Great Atlantic & Pacific Tea Co., La.App., 13 So. 2d 747, appears not to have application to the facts of the case under consideration. The employee’s work in that case was entirely in the store as a butcher. He was on his way, in his own car, to attend an instructional meeting, after working hours. These meetings were held for the benefit of the employer and its employees. The employees were not required to attend these meetings. It was held that employee was not acting within course and scope of employment.

One other case, Great American Indemnity Co. v. Landry Stores, La.App., 177 So. 405, has been- cited. In that case it was shown that the employer instructed the truck driver not to make further deliveries during a storm. He became apprehensive about the safety of his mother and took the truck without the knowledge of his employer to go to see about her. Employer held not liable for driver’s negligence under respondeat superior doctrine even if driver had made a delivery before accident and was intending to make another delivery after visiting his mother, since - there had been a departure from duty which had not been resumed.

For these reasons the judgment appealed from is reversed. The demands of plaintiff and of intervener are rejected, and the suit dismissed at the cost of plaintiff.

HARDY, Judge

(concurring).

While I concur in the’ findings comprehended by the opinion and the conclusion reached, nevertheless, I feel that the opinion should include a ruling on the plea of prescription advanced by defendant. In my opinion, the plea of prescription should have been sustained, since, while this defendant and Sentell were' each liable for the full amount of damages caused by Sentell’s negligence, they were not joint tort-feasors bound by a perfect solidarity of obligation, and the defendant in" this suit, Shreveport Packing Company, accordingly, should not have been held as a “debtor in solido” within the meaning and contemplation of Article 2097 of the Revised Civil Code providing for the interruption of prescription with regard to all such debtors as the result of' suit against one.

On Rule to Show Cause Why Petition for Rehearing Should not be Dismissed.

PER CURIAM.

Judgment was rendered in this case by this court on July 5, 1946. The demands of the plaintiff and the intervenor were rejected at plaintiff’s cost. On July 13th the plaintiff filed application for rehearing wherein he alleged: “That the judgment rendered herein is contrary to the law and the evidence and that a rehearing should be granted herein.”

Contemporaneous with the filing of the application for rehearing, plaintiff’s counsel also filed a motion for an extension of time within which to file briefs in support of the application. Favorable action was had on the motion, and September 1st was fixed as the limit of the extension.

On July 22d counsel for the defendant applied for and were granted an order directing the plaintiff to show cause “why *622the petition for rehearing should not be dismissed, the decree rendered herein by this Honorable Court declared final, and the mandate forwarded to the trial court.” The gravamen of the petition for the rule is in the following language, viz.: “That the plaintiff appellee herein has filed what purports to be a petition for rehearing, but the said petition does not set forth the grounds upon which the complainant charges that the judgment rendered by this Court is erroneous, and it therefore does not conform to the requirements for such a petition laid down in Article 912 of the Code of Practice of Louisiana, and does not have the effect of suspending the operation of the judgment rendered herein.”

That portion of plaintiff’s answer to the rule that joins issue with the allegations thereof, reads as follows: “Further answering, respondent shows that he strictly complied with Rule No. 9 of this Honorable Court, promulgated in 1933 and adhered to ever since by the Court and the Bar generally, and shows that this Honorable Court had full power and warrant in law to make the said rule, and that the said rule is binding on this Court and the litigants before it.”

Rule No. 9 of this Court is as follows: “Applications for rehearing must be in writing and filed with the clerk, and must be supported by brief with not less than three copies, giving reference to the facts in the record, and citing the law on which the motion is founded.”

It is not questioned that the requirements of this ■ rule were strictly complied with by the plaintiff. The application for rehearing is in writing and was timely filed with the clerk of this Court. It is supported by brief in triplicate that refers to the facts in the record and cites the law on which the motion is founded. The brief was filed within the time fixed. Therefore, the question tendered for decision is a challenge of this Court’s right and power to adopt and follow the rule. Is the rule repugnant to law?

Rule No. 1 of this Court is largely a copy of the second paragraph of Section 27, Article VII of the Constitution of 1921. It reads: “Rules of practice regulating appeals to and proceedings in the Supreme Court of Louisiana, shall, under section 27, article VII, of the Constitution, apply to appeals and proceedings in this court, so far as they may be applicable.”

Defendant’s counsel contend that Article 912 of the Code of Practice is the controlling law with regard to the necessary and essential allegations and contents of an application for rehearing in the Supreme Court; and argue that inasmuch as the quoted constitutional provision directs that rules of practice regulating appeals to and in the Supreme Court shall, so far as applicable, apply to appeals in the Courts of Appeal, said article governs and regulates applications for rehearing in the Courts of Appeal. The article reads as follows: “In the interval between the day on which the judgment is rendered and that on which it becomes final, a party dissatisfied with the judgment may apply to the court for a new hearing in the cause, and for this purpose shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion.”

It is obvious that the application for rehearing under consideration does not precisely meet the requirements of this article and it would follow that the relief sought by defendant should be granted if this article now has application to rehearings in the Courts of Appeal.

It will be observed by reading the article that the applicant for a rehearing “shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion”, whereas rule No. 9 of this Court allows the applicant to support the petition for a rehearing by brief independent of the application which must conform to practically the same requirements as are necessary under Article 912 of the Code of Practice.

To support its position, plaintiff in rule cites and quotes from the following cases decided by the Supreme Court: Brown v. *623Stroud et al., 34 La.Ann. 374; Lacroix et al. v. Camors et al., 34 La.Ann. 639.

These cases enforce in the Supreme Court the requirements' of Article 912 of the Code of Practice. They correctly construe the article, the provisions of which are quite unambiguous.

Plaintiff in rule also cites and quotes from: Tyson v. Victory Industrial Life Insurance Co., La.App., 4 So.2d 603; Armbruster v. Behan, 3 Orleans Appeal, 184, decided by the Orleans Court of Appeal; and Walker v. Mills Engineering Construction Co. et al., La.App., 153 So. 344, 345, decided by the First Circuit.

In this last case the application for rehearing was filed with the Clerk of the District Court instead qf the Clerk of the Court of Appeal. For this reason the application was rejected. The Court went further, however, and held that the application was purely formal and “does not point out specifically any error in the opinion and judgment handed down herein.”

In the two cases from the Orleans Court of Appeal, that court declined to entertain applications for rehearing because they did not comply with its rule as regards rehearing, which rule was patterned after Article 912 of the Code of Practice. In the Tyson case the rule [rule 10] is quoted. It reads as follows, to-wit [4 So.2d 606]: “ ‘The application for rehearing shall be made by petition, filed within the legal delay and containing a statement of the points of law and fact upon which it is founded. * * *

The prevailing rule of that Court when the Armbruster case was decided is slightly different in language but about the same in substance.

It is readily observed that these rules require that the application for rehearing itself shall contain the points of law and fact with authorities, upon which it is founded.

Accepting plaintiff’s brief on the subject, the rule of the First Circuit, with respect to applications for rehearing therein, reads as follows: “Applications for rehearings must be filed within the legal delay and in the manner required by law.”

Presumably the law to which this rule intends to refer is Article 912 of the Code of Practice.

Defendant in rule calls our attention to the difference in language between Article 103 of the Constitution of 1879 and Article 104 of the Constitution of 1898, which difference has been carried into Section 27 of Article VII of the Constitution of 1921. Article 103 reads as follows: “The rules of practice regulating appeals to, and proceedings in the Supreme Court, shall apply to appeals and proceedings in the courts of appeal, so far as they may be applicable, *until 'otherwise provided by law.”*

Section 27 of Article VII of the Constitution of 1921 reads exactly like Section 103 of the Constitution of 1879, except the words “by law” in the last clause in Section 103 are omitted.

It is forcefully argued by defendant in rule that deletion of the words “by law” worked a far-reaching change in the rule-making power of the Courts of Appeal. He contends that the effect of this deletion was to confer upon the Courts of Appeal power and authority to adopt rules for the conduct of litigation before them which need not follow those of or prescribed by law for the Supreme Court; that “until otherwise provided” means until otherwise provided by rules of the Courts of Appeal themselves.

It is certain that under Section 103 of the Constitution of 1879 the rules to be adopted by the Courts of Appeal,/ therein established, had to be the same as those prescribed for or by the Supreme Court, so far as practicable, until “otherwise provided by law”, which means by legislative action or constitutional provision.

Obvious reason existed for the incorporation of Section 103 in the Constitution of 1879. Prior to that date there were no Courts of Appeal as we now know them in the state. Such courts were created by that Constitution and the state was divided into five circuits, having two judges each. Of necessity, the newly created courts must have rules for the transaction of business before them. Evidently the Legislature did not choose to confer upon these newly created courts unlimited rule-*624making power; hence, the restriction embodied in Section 103. As time passed and these courts attained more importance in the administration of justice, it is argued, and we think correctly, that it was right and proper they should be vested with power to adopt rules of their own that would not necessarily track those of and in the Supreme Court. “Otherwise provided”, we think, means that these courts may adopt rules of their own choosing, and are not controlled in so doing by those of the Supreme Court or by statutes prescribing rules for that court unless the statute expressly so states.

The Code of Practice which contains Article 912 was adopted in 1870 when, as before stated, there were no Courts of Appeal. The article, of course, was designed to regulate applications for rehearing in the Supreme Court. It established a rule that that court was obliged to observe and follow. When the Courts of Appeal were created the rule of practice prescribed in said article automatically devolved upon them under the plain language of Section 103 of the Constitution of 1879, and which they were bound to follow until altered by subsequent legislative enactment or by organic law.

If the framers of the Constitution of 1898 did not have in mind the idea that the Courts of Appeal should be given the right and power to adopt practice rules for their own guidance, why, we ask, were the words “by law” stricken from Section 103 of the Constitution of 1879?. The purpose of the deletion would seem quite clear.

If the other Courts of Appeal of this state elect to follow Article 912 of the Code of Practice, it is their obvious right to do so. It would be their own rule although in the language of this article. It is not necessary that the rules of all of the Courts of Appeal of the state be identical. If the judges of the Court of Appeal for the Second Circuit chose to have a rule on the question of applications for rehearing different, in some respects,, from that prevailing in the other Courts of Appeal, we think they had the right to do so.

We have before us, in pamphlet form, the rules of the Court that were adopted in 1907 and, with some revisions and changes, re-adopted in 1921 at which date the Court consisted of Judges C. V. Porter, R. B. Dawkins, and D. N. Thompson. The rules were last revised and reproduced in 1933. Rule No. 9, with only slight change in wording, is a reproduction of the rule covering the same subject matter that was adopted in 1907. The rule of 1933 is identical in language with that of 1921.

This is the first instance in which the application of the rule has been attacked for any reason, although for forty years or more, this Court, regardless of changes in personnel, and the Bar, have interpreted the rule in such manner as approved the filing of applications for rehearing, couched in general language, provided such applications were accompanied by brief detailing specific grounds of error in the Court’s decrees, and citing authorities in connection therewith. This Court has meticulously followed its rule, except in cases where additional time in which to file brief has been granted by it.

For the reasons herein given, the rule is recalled and the petition therefor is dismissed at cost of the defendant.