Anderson v. Gobea
| Citation | 501 P.2d 453,18 Ariz.App. 277 |
| Decision Date | 04 October 1972 |
| Docket Number | No. 2,CA-CIV,2 |
| Parties | Scott W. ANDERSON et al., Appellants, v. Efren L. GOBEA and Patricia Gobea, husband and wife, and Desert Guild, Inc., Appellees. 1141. |
| Court | Arizona Court of Appeals |
Everett & Bury, P.C., by David C. Bury, Tucson, for appellees Gobea.
Estes & Zlaket by Thomas A. Zlaket, Tucson, for appellee Desert Guild, Inc.
This is a suit for money damages, arising out of a two-vehicle intersection collision brought by appellant Scott W. Anderson on behalf of himself and his minor children, Steven Anderson and Gregory Anderson, who were occupants of his car at the time of the collision.
At approximately 8:30 on the morning of January 28, 1970, a collision occurred in the uncontrolled intersection of North Martin Avenue and East Waverly Street in Tucson, Arizona, between the vehicles driven by Scott W. Anderson and Efren L. Gobea. Appellee Gobea was driving his own automobile but was hauling a large air compressor mounted on a trailer which his employer, appellee Desert Guild, Inc., had rented the day prior to the collision.
After the conclusion of plaintiff's evidence, the court directed a verdict in favor of Desert Guild, Inc. The jury returned a verdict of sixteen dollars in favor of the minor children and against the appellees Gobea, and a verdict in favor of the Gobeas and against appellant Scott W. Anderson.
Appellants present the following questions: (1) Did the court below improperly grant the motion for directed verdict in favor of Desert Guild, Inc.? (2) Was the finding by the jury of contributory negligence on the part of Scott W. Anderson against the clear weight of the evidence? (3) Was the court's instruction to the jury on contributory negligence improper due to its failure to provide appellants with equal protection of the law, and its violation of Article 18, § 5 of the Arizona Constitution, A.R.S.?
On the issue of contributory negligence the instruction given by the court followed the guidelines of Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962), the pertinent part thereof reading as follows:
'. . . Thus, if you find that both plaintiff and defendant were guilty of negligence and the negligence of both contributed to the injury or damage sustained by the plaintiff, you are instructed that your verdict Should be for the defendant . . ..' (Emphasis added)
Appellants now claim the use of the word 'should' to be fundamental error. This contention is based upon the case of Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970) which appellants claim has effectively overruled the 'should' instruction.
The court in Heimke said:
(Emphasis added) 106 Ariz. at 30, 470 P.2d at 111.
To further buttress their argument that Heimke v. Munoz, supra, outlaws the 'should' instruction, appellants point to the law notes in 13 Arizona Law Review, 560 (1971), wherein the writer asserts that Heimke v. Munoz, supra, effectively overrules the 'should' instruction.
In our opinion both the Law Review writer and appellants read too much into the case of Heimke v. Munoz, supra. That case merely reasserts the Layton v. Rocha doctrine that the trial court must not directly or indirectly tell the jury that it Shall return a verdict compatible with the laws of contributory negligence and cannot peremptorily require the jury to follow such instructions on the issue of contributory negligence in arriving at its verdict. The use of the word 'should' does not mandate the jury to return a verdict compatible with the law of contributory negligence. Rather, it gives the jury the right to opt against contributory negligence if it feels so disposed.
Appellants claim that the finding by the jury of contributory negligence on the part
of appellant Scott W. Anderson was clearly against the weight of the evidence. We have examined the trial transcript on this issue and find this argument to be without merit.
In the most serious issue raised by this appeal, appellants contend that the court erred when it granted a directed verdict in favor of appellee Desert Guild, Inc. at the close of appellants' case in chief. On appeal, as it did in the trial court, Desert Guild, Inc. relies upon the 'going and coming to work' rule to justify non-imposition of liability.
Appellants claim that Desert Guild, Inc. is liable for their injuries under the doctrine of Respondeat superior. The doctrine of Respondeat superior which imposes liability upon the master for the acts of his servants committed in the course or within the scope of their employment, is based on considerations of public policy, convenience and justice. It is elementary that everyone in the management of his affairs shall so conduct them as not to cause an injury to another, and if he undertakes to manage his affairs through others, he is bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority. This basic principle has been embodied in the Restatement (Second) of Agency § 219 (1958) and was followed by this jurisdiction in Consolidated Motors, Inc., v. Ketcham, 49 Ariz. 295, 66 P.2d 246 (1937).
The conduct of a servant is within the scope of employment only if (a) it is the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master. Transamerica Ins. Co. v. Valley National Bank, 11 Ariz.App. 121, 462 P.2d 814 (1970); Scottsdale Jaycees v. Superior Court of Maricopa County, 17 Ariz.App. 571, 499 P.2d 185 (1972); Restatement (Second) of Agency § 228 (1958).
As pointed out in Scottsdale Jaycees v. Superior Court, supra, and Restatement (Second) of Agency § 233 comment a, the employment exists only during the time when the servant is performing or should perform the work which he is employed to do. It does not begin at the time when it is necessary for him to act in order to perform the required service. It terminates only when the master no longer has a right to control it. Although we recognize that Workmen's Compensation cases and cases arising under similar social legislation are not necessarily authority for principles giving rise to common law liability under the doctrine of Respondeat superior, Throop v. F. E. Young & Company, 94 Ariz. 146, 382 P.2d 560 (1963), there are instances when the principles are particularly apropos and can be invoked.
The general rule, followed by Arizona, is that hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer's premises, are not ordinarily incident to the employment and for this reason in most instances are held not compensable as arising out of and in the course of the employment. City of Phoenix v. Industrial Commission, 104 Ariz. 120, 449 P.2d 291 (1969); McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968); Malinski v. Industrial Commission, 103 Ariz. 213, 439 P.2d 485 (1968); Hancock v. Industrial Commission, 82 Ariz. 107, 309 P.2d 242 (1957); Sendejaz v. Industrial Commission, 4 Ariz.App. 309, 420 P.2d 32 (1966).
The 'going and coming' rule is subject to exceptions, Sendejaz v. Industrial Commission, supra, but before considering the possible application of one of the exceptions in this case, it is necessary to set forth more facts which the evidence discloses on the issue of scope of employment.
The appellee Efren Gobea was employed as a handyman and delivery man for appellee Desert Guild, Inc. Desert Guild was in the process of opening a new office at the site of a former restaurant. The floor of this building contained an elevated slab of concrete block which had to be broken up in order to have the floor level for the purposes of the new office. The day prior to the accident, Mr. Gobea was told by Mr. Green, the owner of Desert Guild, Inc., that an air compressor had been rented from Erv's Rental and that Mr. Gobea should pick it up and take it to the job site. Mr. Gobea, following the orders of his employer, used his own pick-up truck to haul the air compressor, which was mounted on a trailer, from Erv's Rental to the job site and then proceeded to use the same in connection with an air hammer which he was using to break up the cement. In order to safeguard the air compressor, Mr. Gobea was told by his employer to take it with him and bring it back the next day for use on the job. Mr. Gobea, at the end of his day's work, pursuant to his employer's instructions, hooked the air compressor onto the back of his pick-up truck, drove it to his home, and parked it in the driveway.
The accident occurred the next day while he was bringing the air compressor back to the job site in accordance with the instructions of his employer.
As previously stated by the court, the 'going and coming' cases must be decided on their peculiar fact situations. Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550 (1952). Ap...
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