Condict v. Condict, 5812

• Decision Date: 07 June 1983
• Docket Number: No. 5812,5812
• Citation: 664 P.2d 131
• Parties: Wynn G. CONDICT, Appellant (Plaintiff), v. Alden CONDICT, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 131

664 P.2d 131

Wynn G. CONDICT, Appellant (Plaintiff), v. Alden CONDICT, Appellee (Defendant).

No. 5812.

Supreme Court of Wyoming.

June 7, 1983.

John E. Stanfield and John B. Scott of Smith, Stanfield & Scott, Laramie, for appellant.

William F. Downes of Brown, Drew, Apostolos, Massey & Sullivan and Michael Golden of Williams, Porter, Day & Neville, P.C., Casper, for appellee.

Sharon A. Fitzgerald and Sylvia Lee Hackl, Cheyenne, for amicus curiae Committee of the Wyoming Trial Lawyers Ass'n.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

ROSE, Justice.

This appeal comes from the granting of appellee's motion for a directed verdict. The lawsuit between appellant-plaintiff Wynn Condict and appellee-defendant Alden Condict was tried on theories of negligence, intentional tort, and respondeat superior. At the close of plaintiff's case, the judge granted a directed verdict in favor of the appellee on the ground that appellant Wynn Condict had failed to prove that Alden Condict's employee, Jenkins, was within the "scope of his employment" at the time of the alleged tortious conduct. Appellant presents these issues for review:

1. Did the trial court err in granting appellee's motion for directed verdict?

2. In excluding certain evidence, did the trial court fail to properly apply our decision in Campen v. Stone, Wyo., 635 P.2d 1121 (1981)?

We will reverse and remand for a new trial.

FACTS

Appellant Wynn Condict is the nephew of appellee Alden Condict who, with his brother, Winthrop Condict, operates a ranch in Carbon County, Wyoming.

In 1978, disagreements between Alden and Winthrop caused them to divide their operations in a way which resulted in each brother employing and paying the wages of his own workers, while the two factions continued to ranch the jointly held property. The discord between the brothers, their families and employees resulted in various assaultive conflicts but, in view of the posture of this appeal, it will not be necessary to set out the details of these prior incidents.

Appellant's claim arises from an incident in which he was involved with Ted Jenkins, an employee of Alden Condict. There is an area on the Condict ranch where gas pumps are located close to a bridge, and, because of its weakened condition, this bridge had been designated for use by lighter-weight vehicles only. On the morning in question, Wynn Condict was at the gas pumps assigning his father's employees their various tasks for the day. At the same time, Ted Jenkins and another employee of Alden Condict were gassing two vehicles, one of which was a heavy army-surplus six-by-six truck utilized in haying operations. An altercation occurred between Jenkins and Wynn Condict when Jenkins made known his intent to drive the large army truck over the bridge, it being Wynn Condict's position that this was one of the heavy vehicles for which the bridge was not to be used. Wynn Condict became alarmed because his new pickup truck was blocking the bridge and he proceeded to back his pickup across the bridge. In the meantime, Jenkins had commandeered the army-surplus vehicle, crashed it through a gate and headed toward Wynn's vehicle. Somewhere near the end of the bridge or just off the other side, Jenkins rammed the pickup with the six-by-six truck.

As a result of this impact, appellant claims that he suffered severe injury to his back, which resulted in his bringing a personal-injury action against Jenkins and Alden Condict, as Jenkins' employer, in which he sought both compensatory and punitive damages. Jenkins was never served, and thus the trial, which culminated in a directed verdict, was had with Alden Condict as the only defendant.

THE DIRECTED VERDICT

In directing a verdict for Alden Condict, the trial judge held that plaintiff had failed to prove that Jenkins was acting in the scope of his employment at the time of the incident. In reaching this decision, the judge commented:

" * * * What I'm saying is simply this: that if--you say that Ted Jenkins was engaged in the scope of his employment, and in going to the hayfields, then I think that it is certainly demonstrated by this evidence that he had to deviate from that scope when he took control of the six by six and did something that the evidence indicates to me Alden Condict didn't even know about at that time, much less thereby be presented with the opportunity to say, 'fine, do it. Go ahead. I recognize that you have done this and I condone your actions.' And that simply hasn't been demonstrated through the evidence at all. The act described in this evidence clearly shows to me, without any support of other evidence to the contrary, that Ted Jenkins was acting upon his own action, took matters into his own hands, exercised control over the instrumentalities which he used to create the mischief that resulted when he was given a clear choice to drive whatever it was, 50 feet or 50 yards, to cross the stream and to continue in pursuit of the interest of his employment. And, so, to me it follows from there that if Alden Condict--now, Alden Condict obviously, apparently the evidence shows, said--or I think it's Ted Jenkins that said, 'I'll do anything Alden Condict says.' Well, obviously, inference from that statement that, 'I'll do anything that is within the lawful scope of my employment for him' certainly does not mean, nor can it be reasonably interpreted to mean that 'I'll do any criminal act that Alden Condict tells me to do.' And I think that Alden Condict must specify, and I think the evidence must show that Alden Condict specifies that, 'you take that six by six and do whatever you want with it, including driving into that pickup' or words to that effect. In other words, to create by his authority, the atmosphere for which the damage was done in this case. Now, absent of that kind of proof, I think there has been deprivation of evidence sufficient to present this jury with a question of punitive damages. And I don't think that in the given circumstances, as presented by this evidence, that he was acting within the scope of his employment. Now, this is, and I so rule." (Emphasis added.)

Appellant argues that, by holding that the evidence must show that Alden Condict specifically authorized Ted Jenkins to commit the alleged tortious act, the trial judge erroneously applied the rules announced by this court in Sage Club v. Hunt, Wyo., 638 P.2d 161 (1981). He also urges that the evidence introduced at trial was sufficient to make out a prima facie case under that decision. We agree with the appellant's contentions.

In Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034, 1041 (1978), we discussed the rules governing those situations in which an employee can be thought about as acting within the scope of his or her employment:

" * * * Whether or not he was within the scope of his employment at the time of the accident became a fact question for the jury. Barnes v. Fernandez, Wyo., 526 P.2d 983, 985. The question is one of law only when the conduct in question is shown clearly to be within or without the scope of employment. Sun Land & Cattle Co. v. Brown, Wyo., 394 P.2d 387, 390. And see, Husted v. French Creek Ranch, Inc., 79 Wyo. 307, 333 P.2d 948. The issue was not so clear-cut here as to warrant its disposal as a matter of law.

* * *

* * *

"The rule is that one will be held to be within the scope of his employment when the employee is engaged in an activity which has a multiple purpose, and it is sufficient that one of the purposes is employment-related. The rule from Prosser on Torts, 4th Ed., p. 461 is

" '... that in general the servant's conduct is within the scope of his employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limit of time and space, and is actuated, at least in part, by a purpose to serve the master.'

"Addressing the kind of conduct within scope of authority, Restatement of Agency, 2nd Ed., § 229, says:

" '(1) To be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.'

"Again, where the conduct is actuated by a dual purpose--partly in behalf of the master and partly to serve the interest of the employee--the employee will be within the scope of his employment. Restatement of Agency, 2nd Ed., § 236."

In Combined Insurance Company of America we were concerned with a claim that the servant had negligently injured a third party while acting for the master. Not until our decision in Sage Club v. Hunt, supra, did we decide whether or not similar rules were applicable when an employee intentionally injures another. In Sage Club, we held that these rules were applicable where an intentional tort was in issue:

"This court has held that an employer may be held liable for the negligent acts of an employee acting within the scope of employment, Gill v. Schaap, Wyo., 601 P.2d 545 (1979); Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979); Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034 (1978); and Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189 (1933). We have not, however, had occasion to rule on whether an employer may be held responsible for the intentional tort of an employee. The majority rule, in fact the universally accepted rule, holds employers liable for the intentional torts of employees committed within the scope of employment. Prosser, Law of Torts, § 70, p. 464 (4th ed., 1971). The rule is a matter of economic and social policy, based both on the fact that the employer has the right to control the employee's actions and that the employer can best bear the loss as a cost of doing business." 638 P.2d at 162.

Stated succinctly, in Sage Club v. Hunt, supra, we embraced a rule of law which holds an employer liable for the intentional torts of his employee committed while the employee is acting, at least in part, in furtherance of...