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Blanchard v. Ogima - 253 La. 34, 215 So. 2d 902 (1968)

Rule:

The principal is not liable for the negligent physical conduct of an attorney, a broker, a factor, or a rental agent, as such. In their movements and their control of physical forces, they are in the relation of independent contractors to the principal. It is only when to the relation of principal and agent there is added that right to control physical details as to the manner of performance which is characteristic of the relation of master and servant that the person in whose service the act is done becomes subject to liability for the physical tortious conduct of the actor.

Facts:

Edgar Frank Blanchard and Home Indemnity Company, his employer's workman's compensation insurer, filed an action for damages resulting from personal injuries suffered by Blanchard. A Volkswagen titled in the name of Russo Muffler Shop, a trade name under which the defendant Vincent Russo operated, was driven by the codefendant Sam Ogima and left parked on an incline unattended. The car became disengaged from the parked position and crushed Blanchard against another automobile. General Guaranty Insurance Company, Russo's insurer, was made a codefendant by amended petition and was made a third party defendant by Russo. The trial court rendered judgment for the plaintiffs against Ogima, dismissed the suit against Russo and General Guaranty, and also dismissed the third party demand. The Court of Appeal, Fourth Circuit, affirmed the district court's judgment. The trial court based its judgment upon a finding that Ogima was an independent contractor, and that Russo and his insurer were therefore not liable. The trial court did not consider the possible liability of General Guaranty under the omnibus clause of its insurance policy. The basis of the Court of Appeal's judgment was its finding that there was a relationship of principal and agent between Russo and Ogima, but that the agent Ogima had deviated from his agency, and that Russo was therefore not liable. The Court of Appeal further found that General Guaranty Insurance Company was not liabile for Ogima's negligence under the omnibus clause of its policy because coverage under the insurance policy did not extend to the particular vehicle involved.

Issue:

Can Russo be held liable for the physical negligence of Ogima?

Answer:

No

Conclusion:

The court held that because Ogima was an independent agent or salesman for one sale, he was not the servant of Russo, and Russo was therefore not liable for the physical negligence of Ogima.

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