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Stokes v. Stewart12/22/2000
he called Mr. Perkins the afternoon of the accident. The purpose of the call was to determine if Mr. Perkins owned the Cadillac and to get some background information as to how Mr. Stewart obtained the car. According to Sgt. Arceneaux, Mr. Perkins informed him that between 9:00 and 9:30 a.m., he awakened Mr. Stewart to go to Payless Cashways to pick up some building materials for Mr. Perkins. According to Sgt. Arceneaux, Mr. Perkins said that he gave Mr. Stewart money for the materials and for gas and loaned him the Cadillac. Sgt. Arceneaux also testified that Mr. Perkins voluntarily informed him that Mr. Stewart was a crack cocaine user.
Mr. Stokes' testimony corroborated that Mr. Perkins had knowledge of Mr. Stewart's substance abuse problem before loaning him the car. According to Mr. Stokes, he spoke with Mr. Perkins by telephone a day or two after the accident. Mr. Stokes testified that during this conversation, Mr. Perkins said that he knew Mr. Stewart and that Mr. Stewart did odd jobs for him. According to Mr. Stokes, Mr. Perkins said that he sent Mr. Stewart on an errand, and although he knew Mr. Stewart was a heavy drug user, he did not know he was in such bad shape.
Mr. Perkins, however, testified that he loaned the car to Mr. Stewart when Mr. Stewart asked to borrow his truck to go get something to eat. According to Mr. Perkins, Mr. Stewart did not appear to be under the influence of alcohol at the time. He further testified that he had no knowledge of any prior illegal drug or alcohol use by Mr. Stewart. Finally, Mr. Perkins testified that he never told anyone that Mr. Stewart was a drug addict. He, however, admitted that he had seen Mr. Stewart hanging around with individuals that he heard were drug users.
Generally, an owner of a vehicle is not personally liable for damages which occur while another is operating the vehicle. Harris v. Hamilton, 569 So. 2d 1, 3 (La. App. 4th Cir. 1990). Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver. Jones v. Western Preferred Casualty Company, 633 So. 2d 667, 669 (La. App. 1st Cir. 1993), writ denied, 94-0273 (La. 4/4/94), 635 So. 2d 1123. Under the agent and/or employee theory, a master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a non-servant agent. Rowell v. Carter Mobile Homes, Inc., 500 So. 2d 748, 751 (La. 1987). Only when the relationship of the parties includes the principal's right to control physical details of the actor as to the manner of his performance which is characteristic of the relation of master and servant does the person in whose service the act is done become subject to liability for the physical tortious conduct of the actor. Lasseigne v. American Legion, Nicholson Post No. 38, 543 So. 2d 1111, 1114 (La. App. 1st Cir. 1989). Thus, the determination of whether a party may be held vicariously liable for the torts of another depends on whether the tortfeasor is characterized as a servant. Whetstone v. Dixon, 616 So. 2d 764, 770 (La. App. 1st Cir.), writs denied, 623 So. 2d 1333 (La. 1993).
A servant has been defined as one employed to perform services in the affairs of another and who is subject to the other's control or right to control with respect to the physical conduct in the performance of the services. Ermert v. Hartford Insurance Company, 559 So. 2d 467, 476 (La. 1990). In contrast, a non-servant agent, although a contributor to the business of his master, is not such
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