Alberts v. Mutual Service Cas. Ins. Co.

• Decision Date: 08 August 1963
• Docket Number: No. 10022,10022
• Citation: 123 N.W.2d 96,80 S.D. 303
• Parties: Anna ALBERTS, Plaintiff and Respondent, v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 96

123 N.W.2d 96

80 S.D. 303

Anna ALBERTS, Plaintiff and Respondent, v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Defendant and Appellant.

No. 10022.

Supreme Court of South Dakota.

Aug. 8, 1963.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.

Bogue & Rudolph, Canton, for plaintiff and respondent.

HOMEYER, Judge.

In a personal injury action plaintiff recovered judgment against one Berchel Anderson an employee of the South Dakota Highway Commission, for $35,089.65 in damages and costs. This judgment was partially satisfied and plaintiff now seeks to recover the balance of the judgment from the defendant by a direct action on a policy of insurance issued to the South Dakota Highway Commission. Judgment upon a jury verdict was entered for plaintiff and the defendant insurance company appeals from such judgment.

At the time of the accident in which plaintiff sustained personal injuries, the defendant had in force a public liability and property damage policy insuring the South Dakota Highway Commission which by attached rider provided that if the insured interposed the defense of sovereign immunity the insurance coverage provided by the policy was available to the employees of the insured in their capacity as such. The personal injury action was started against Anderson and the South Dakota Highway Commission and before trial dismissed as to the Commission on assertion of the mentioned defense.

The principal assignment of error pertains to scope of employment. It is claimed that Anderson at the time and place of the accident was acting without authority or in excess of authority and consequently not entitled to the insurance protection accorded employees of the highway commission and that defendant's motions for directed verdict and for judgment notwithstanding verdict should have been granted.

The liability of an employer for the tortious acts of its employees rests upon the doctrine of respondeat superior and an employer is not liable unless the employee is acting within the scope of his employment. Antonen v. Swanson, 74 S.D. 1, 48 N.W.2d 161, 28 A.L.R.2d 1; Morman v. Wagner, 63 S.D. 547, 262 N.W. 78.

The general rule applicable on what conducts is within the scope of employment is set forth in 57 C.J.S. Master and Servant Sec. 570d(2) wherein it is said 'that conduct which the master has specifically directed is within the scope of the servant's employment, but it is not essential that the conduct be specially authorized by the master. It is enough that it is impliedly directed or authorized by the master, or is of the same general nature as that authorized, or is incidental to the conduct authorized. In determining whether or not a servant's conduct, although not specifically directed or authorized, is impliedly authorized or incidental to the conduct authorized, the surrounding facts and circumstances, together with the nature of the employment and the conduct of the employee, will be considered. A servant has implied authority to do what is usual, customary, and necessary to fulfill the duty intrusted to him by the master, and accordingly an act is within the scope of a servant's employment where it is reasonably necessary or appropriate to accomplish the purpose of his employment, and intended for that purpose, although in excess of the powers actually conferred on the servant by the master.'

Conduct of a servant is within the scope of employment if '(a) it is of the kind he is employed to perform, (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master * * *.' American Law Institute, Restatement, Agency 2d, Sec. 228(1). Conduct of the servant may be within the scope of his employment, although not intended or consciously authorized by the master, but Id. Sec. 229, '(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized, (emphasis ours) (2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: (a) whether or not the act is one commonly done by such servants; (b) the time, place and purpose of the act; (c) the previous relations between the master and the servant; (d) the extent to which the business of the master is apportioned between different servants; (e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; (f) whether or not the master has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; (i) the extent of departure from the normal method of accomplishing an authorized result; and (j) whether or not the act is seriously criminal.' An act may be within the scope of employment even though forbidden or done in a forbidden manner, Id. Sec. 230, or consciously criminal or tortious. Id. Sec. 231. For applications of these principles generally see Morman v. Wagner, 63 S.D. 547, 262 N.W. 78; Anderson v. Chicago & N. W. Ry. Co., 59 S.D. 543, 241 N.W. 516; Hasche v. Wagner, 55 S.D. 595, 227 N.W. 66 and cases cited under the quoted sections in American Law Institute, Restatement, Agency 2d, Appendix.

The servant may also be within the scope of his employment in using an instrumentality not expressly authorized to effect a result which he has been ordered by the master to accomplish where the means are not specified, American Law Institute, Restatement, Agency 2d, Sec. 239; Texas Power & Light Co. v. Denson, Tex.Civ.App., 45 S.W.2d 1001; Guitar v. Wheeler, Tex.Civ.App., 36 S.W.2d 325, and no other means are available, Cumming v. Automobile Crankshaft Corporation, 232 Mich. 158, 205 N.W. 133, or if the means available are not in operating condition. Husted v. French Creek Ranch, 79 Wyo. 307, 333 P.2d 948. For 'If the master directs a servant to accomplish a result and does not specify the means to be used, the servant is authorized to employ any usual or suitable means.' American Law Institute, Restatement, Agency 2d, Sec. 239, comment (a). In short, authority may be implied from necessity.

The cases on a master's liability and nonliability for the tortious acts of his servant are legion and virtually all, more or less, embody varying applications of the general principles enumerated above. We believe no useful purpose would be served in discussing any of the many cases on this subject. Suffice to say as the North Dakota Court did in Hoffer v. Burd, 78 N.D. 278, 49 N.W.2d 282, that each case depends on its own facts and circumstances.

Viewing the evidence and all reasonable inferences therefrom in a light most favorable to plaintiff, as we are required to do, we recite the facts and circumstances we deem pertinent. Berchel Anderson on the date of the accident, August 8, 1960, had been for about 5 1/2 years a continuous employee of the South Dakota Highway Commission, classified as a light equipment operator, working out of the Hurley maintenance station in Turner County. There were four employees at the Hurley station and their duties were to maintain all state roads in that county. One of the employees, Albert Dangel, had been designated a working foreman who kept time sheets and exercised minor supervisory control over the other employees, but in general all employees performed substantially the same tasks. In winter months, most of the work involved snow removal and in the summer mowing weeds, with some time spent in hauling gravel, patching roads, and doing similar maintenance work. During the weed-cutting season Anderson spent virtually all of his time mowing weeds and in early summer he and another employee had each been assigned a mower and given general instructions to cover the whole maintenance area, to cut to a certain height and to keep the mower in repair and operating condition. On the day of the accident, Dangel and the fourth employee were in separate gravel trucks in the Beresford area. Beresford is about 30 miles from Hurley. Dangel's truck had a two-way radio and could be contacted via highway patrol radio from Parker. He could not be contacted from Hurley. The Hurley maintenance station had no telephone, but a toll call could be placed to the highway patrol radio, who could then talk via short-wave to Dangel, and the information could be relayed to Hurley by a toll call from Parker.

On the day of the accident, Anderson began mowing weeds about 7:00 a. m. and had a mower breakdown about one hour later. He returned to the Hurley station which was absent other employees and the needed repair part was not in stock, so he utilized the only state-owned conveyance available, being a 1947 or 1948 oil distributor truck, and drove by direct route to the Sioux Falls Highway shop distant about 35 or 36 miles, obtained a repair part and returned directly to Hurley and discovered that he had been given the wrong part. The evidence shows that the state truck was old, in poor repair, and had heated on the trip believed to have been caused by a clogged radiator. Anderson ate his lunch, then went to his home a few blocks away, took his own automobile, a 1953 Chevrolet, drove directly to Sioux Falls, obtained the correct repair part, and was returning by direct route to Hurley when involved in the accident in which plaintiff was injured. The repair part was in his car when the accident occurred. It is undisputed that Dangel had no knowledge of the mower breakdown and found no knowledge that Anderson had made the first trip to Sioux Falls in the state-owned oil distributor truck or the second trip in his own automobile. It is also undisputed...