Waits v. Indemnity Ins. Co. of North America , 215 La. 349 ( 1949 )

The writer has expressed doubt previously as to the soundness of the decision in Parks v. Hall et al., 189 La. 849,181 So. 191 (see dissent in Stanley et al. v. Cryer Drilling Co. et al., 213 La. 980, 36 So.2d 9), but this court on more than one occasion has given effect to that decision, and I now acquiesce in it as being the law. The facts of this case, however, distinguish it from the Parks case, and the rule of that case is not applicable here. In the Parks case the employee had taken the car initially with the permission of the employer, but there was lack of authority to use the car for the purpose for which it was being used when the accident involved occurred. The court in that opinion pointed out also that the employer never questioned the employee about the use of the car or complained about the time it was brought back to him by the employee.

In the instant case, as correctly pointed out by the Court of Appeal, the driver took possession of the truck in violation of definite and unequivocal instructions, which violation he acknowledged and admitted. I am of the opinion, therefore, that there was no permission for the initial use of the truck in this case, but that on the contrary the use was against the specific instructions of the employer; that the decision in the Parks case is not controlling here; that the use of the truck was not covered by the omnibus clause of the policy; and that there was no liability on the part of the insurer.

I respectfully dissent.