Deuchar v. Foland Ranch, Inc., 15474

• Decision Date: 29 July 1987
• Docket Number: No. 15474,15474
• Citation: 410 N.W.2d 177
• Parties: James A. DEUCHAR, Plaintiff and Appellant, v. FOLAND RANCH, INC., Defendant and Appellee, and Robert ANDERSON, Defendant and Third-Party Plaintiff, v. Gene DEUCHAR and Dennis Miller, Third-Party Defendants.
• Court: South Dakota Supreme Court

Page 177

410 N.W.2d 177

James A. DEUCHAR, Plaintiff and Appellant, v. FOLAND RANCH, INC., Defendant and Appellee, and Robert ANDERSON, Defendant and Third-Party Plaintiff, v. Gene DEUCHAR and Dennis Miller, Third-Party Defendants.

No. 15474.

Supreme Court of South Dakota.

Argued March 24, 1987.

Decided July 29, 1987.

Thomas C. Barnett, Jr. of Kemnitz & Barnett, Philip, for plaintiff and appellant.

G. Verne Goodsell of Gunderson, Palmer & Goodsell, for defendant and appellee; Daniel E. Ashmore of Gunderson, Palmer & Goodsell, Rapid City, on the brief.

HENDERSON, Justice.

PROCEDURAL HISTORY

This is a civil appeal taken from a summary judgment granted in Haakon County. James A. Deuchar, plaintiff, instituted a suit alleging negligence on the part of Robert Anderson, Gene Deuchar, and Foland Ranch, Inc., defendants. Defendant Foland Ranch was granted summary judgment upon the basis that Anderson, who mistook plaintiff for a wounded deer and shot him, was not acting within the scope of his employment when he injured plaintiff. At issue, are the questions: Under the facts before us, did the trial court err in granting summary judgment? More specifically, may Foland Ranch be held liable for the action of its employee, Robert Anderson, under the doctrine of respondeat superior? Given the scenario of facts, which we detail below, we hold that summary judgment was improper and, accordingly, reverse and remand.

FACTS

We now develop the facts. A hunting party consisting of plaintiff, his brother Gene Deuchar, and two other individuals arrived at Foland Ranch on November 23, 1983, to go deer hunting. When the hunting party arrived, Robert Anderson, an employee of Foland Ranch, was caking and moving pipes so that cattle could be watered. During the time that Anderson did his chores, the hunting party accompanied him and conversed with him. When Anderson finished his chores, he parked his ranch vehicle, picked up his rifle, and joined the hunting party. A fair reading of the depositions below permits the conclusion that this hunting party knew there was a "no hunting" rule on the Foland Ranch and they had been denied permission to hunt on the ranch several times. ¹ Foland Ranch further had a policy that there could be no hunting on the ranch unless permission was secured from Vern Foland, the owner of the ranch. From time to time, permission was secured to hunt by divers persons and an admonition was given that all vehicles were to stay on established paths and remain away from livestock. Obviously, Foland did not want the livestock shot by hunters. Furthermore, Foland testified below that hunters could not hunt on the ranch unless accompanied by corporate employees. Apparently, Anderson was one of these corporate employees and had acted as a guide for outside hunters and to enforce his employer's rules concerning any hunt on the ranch. A personal note: Anderson is the stepson of Vern Foland, president of Foland Ranch, Inc. Anderson also happens to be married to plaintiff's sister. On the date of this hunt and accident, Anderson had not sought the permission of Vern Foland to allow this particular hunt. At least one deposition suggests that this was not an unusual situation. Plaintiff, however, was unaware that Foland's permission had not been obtained by Anderson.

So far as this particular hunt was concerned, it seems to be uncontroverted that Foland did not give this hunting party permission to hunt on the ranch and did not authorize Anderson to guide the party. It also appears to be uncontroverted that Anderson did supervise the hunting party on the date in question and acted as its guide.

Anderson had filled his deer tag several days prior to the date of accident and apparently was not trying to get his own deer. At one time, as he accompanied the hunting party, Anderson stopped and shot at a coyote. Coyotes are generally recognized as a nemesis to a ranching operation.

As the sun was setting, plaintiff shot and wounded a buck deer that was below him in a draw. Plaintiff and one Dennis Miller approached the buck and it stumbled to its feet and began to run down further into the draw. Plaintiff, Dennis Miller, and David Miller pursued the deer. Anderson and Gene Deuchar remained behind with the trucks on a ridge. Plaintiff tried to trail the deer through the snow. Shortly, Anderson and defendant Deuchar believed they spotted the wounded buck traveling near a Rural Electric Association (REA) line. Anderson then fired his weapon and the bullet hit his brother-in-law, plaintiff James Deuchar, above the knee, inflicting serious injury.

Complicating this set of facts somewhat further, the parties generally understood and agreed through the time of the depositions, that there was no business purpose behind the hunt, no money exchanged hands, and that it was strictly for recreational purposes. According to the deposition of defendant Anderson, he told the hunting party that he did not have Foland's permission to hunt on the ranch and that if they shot a deer, they should keep quiet about it. He further expressed in his deposition that Foland would not be very happy if he drove up and saw them hunting because he, Anderson, knew he was violating Foland's policy of not allowing hunters to hunt on the ranch without first obtaining Foland's approval.

DECISION

Plaintiff stresses two main theories. First, he maintains that Anderson's actions, as a guide to the hunting party when plaintiff was injured, were triggered by a dual purpose, namely (1) for pleasure, and (2) to comply with the duties of his employment. Plaintiff urges by virtue of this dual purpose, Anderson was, at least partially, acting within the scope of his employment. By virtue of this rationale, plaintiff concludes that Foland Ranch, the master, is liable for the negligent acts of its servant, Anderson. Second, plaintiff contends that genuine issues of material fact exist as to whether Anderson's acts were within the scope of his employment. Plaintiff argues that summary judgment was improperly granted. We are persuaded by plaintiff's arguments. Genuine issues of material fact exist concerning this question: Did plaintiff's injury occur while Anderson was within the scope of his employment?

It is universally recognized that a master is liable for injuries to the person or property of third persons caused by the negligence of his employee when such negligence occurs within the scope of his employment. Gackstetter v. Dart Transit Co., 269 Minn. 146, 149, 130 N.W.2d 326, 328 (1964); Alberts v. Mutual Serv. Cas. Ins. Co., 80 S.D. 303, 306, 123 N.W.2d 96, 98 (1963); Antonen v. Swanson, 74 S.D. 1, 11, 48 N.W.2d 161, 167 (1951); Morman v. Wagner, 63 S.D. 547, 549, 262 N.W. 78, 79 (1935); Prosser and Keeton on the Law of Torts Sec. 70, at 502 (5th ed. W. Keeton 1984); H. Reuschlein & W. Gregory, Handbook on the Law of Agency and Partnership, Sec. 228 (1979); Restatement (Second) of Agency Sec. 228 (1958); 53 Am.Jur.2d Master and Servant Sec. 404 (1970); 57 C.J.S. Master and Servant Sec. 570d(2) (1948). The phrase "within the scope of employment" has been called vague but flexible, referring to "those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." Prosser, supra Sec. 70, at 502.

Plainly, conduct which the master has directed the servant to accomplish is within the scope of employment, but it is not necessary that conduct be specifically 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.' " Alberts, 80 S.D. at 306, 123 N.W.2d at 98 (quoting 57 C.J.S., supra, at Sec. 570d(2)).

To determine if a servant's act is within the scope of employment, numerous factors should be considered. ² Generally, if an act is connected either directly or indirectly with the business of the employer (designed to benefit the employer's business), that act is conducted within the scope of employment. Morman, 63 S.D. at 550, 262 N.W. at 79; Prosser, supra Sec. 70, at 502. See Gackstetter, 269 Minn. at 150, 130 N.W.2d at 329.

Further, "[t]he fact that the servant's act is expressly forbidden by the master, or is done in a manner which he has prohibited, is to be considered in determining what the servant has been hired to do, but it is usually not conclusive, and does not in itself prevent the act from being within the scope of employment." Prosser, supra 70, at 502 (footnote omitted; emphasis supplied). See Restatement (Second) of Agency Sec. 230; Alberts, 80 S.D. at 307, 123 N.W.2d at 99. An essential focus of inquiry remains: Were the servant's acts in furtherance of his employment? If the answer is yes, then employer liability may exist even if his servant's conduct was expressly forbidden by the master. See Prosser, supra Sec. 70, at 502. See also Gurley v. Southern Power Co., 172 N.C. 690, 90 S.E. 943 (1916).

However, an employer should not be held liable for the acts of a servant who has embarked upon a "frolic" of his own with no underlying purpose of furthering his master's business. When a servant acts with an intention to serve solely his own interests, this act is not within the scope of employment, and his master may not be held liable for it. Prosser, supra Sec. 70, at 503; Restatement (Second) of Agency Sec. 234.

Problems in predicting the outcome of a case arise when a servant acts for dual purposes, that is, to serve the master and to further personal interests. In some cases, employer liability pivots on whether the servant's acts are at least, in part, to further the master's business. See, e.g., Prosser, supra Sec. 70, at 503 04; Restatement (Second) of Agency Sec. 237. Other authorities mandate that the servant's acts...