Elliott v. Rogers Const., Inc.

• Decision Date: 27 January 1971
• Citation: 479 P.2d 753,257 Or. 421
• Parties: Lovina Fay ELLIOTT, Administratrix of the Estate of Otis Ward Elliott, Deceased, Appellant, v. ROGERS CONSTRUCTION, INC., an Oregon Corporation, and Fredrick Larry Kenney, Respondents.
• Court: Oregon Supreme Court

Page 753

479 P.2d 753

257 Or. 421

Lovina Fay ELLIOTT, Administratrix of the Estate of Otis Ward Elliott, Deceased, Appellant, v. ROGERS CONSTRUCTION, INC., an Oregon Corporation, and Fredrick Larry Kenney, Respondents.

Supreme Court of Oregon.

Argued and Submitted at Pendleton Oct. 26, 1970.

Decided Jan. 27, 1971.

Robert J. Morgan, Milwaukie, argued the cause for appellant. With him on the brief were Erlandson & Morgan, and Roger P. Mundorff, Milwaukie.

Cleveland C. Cory, Portland, argued the cause for respondent Rogers Construction Inc. With him on the brief were Davies, Biggs, Strayer, Stoel & Boley, and Clarence R. Wicks, Portland.

James H. Clarke, Portland, argued the cause for respondent Fredrick Larry Kenney. With him on the brief were McColloch, Dezendorf, Spears & Lubersky, and Richard S. Borst, Portland.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

BRYSON, Justice.

This is an action for wrongful death by plaintiff, administratrix of her deceased husband's estate. The deceased, Otis Ward Elliott, was killed when struck by an automobile operated by defendant Kenney while defendant Kenney was on his way to work for defendant Rogers Construction, Inc. The accident occurred adjacent to Viento State Park on United States Highway 30 about 6:30 a.m. on September 20, 1967.

Defendant Rogers Construction, Inc., had a contract with the Oregon State Highway Department to widen U.S. Highway 30 from two to four lanes. The two lanes of traffic open to the public ran next to the Columbia River and north of the two new lanes under construction. (Viento State Park existed on both sides of Highway 30.) The deceased was employed by the Park Division, Oregon State Highway Department, as Park Supervisor of Viento State Park. The State Highway Department provided the deceased a home on the north or river side of the highway directly across from fifteen campsites and the tool shed and equipment storage building on the south side of the highway. The accident occurred opposite the deceased's house as he was crossing a portion of the new roadway, not open to the public for vehicular traffic, on his way to the tool shed and equipment storage building.

The plaintiff alleges that each defendant was negligent and Rogers Construction, Inc., negligent in further separate specifications. In Count Two plaintiff alleges that each defendant was grossly negligent as set forth later in this opinion. The defendants entered general denials and affirmatively charged the plaintiff's decedent with contributory negligence and gross negligence.

The case was tried before a jury. At the conclusion of plaintiff's case, on motion by each defendant, the trial court entered judgment of involuntary nonsuit against the plaintiff and in favor of each defendant.

Plaintiff contends that the trial court erred in ruling that defendant Kenney, as a matter of law, was not acting in the course and scope of his employment with Rogers Construction at the time of the accident.

Both parties rely upon Hantke v. Harris Ice Machine Works, 152 Or. 564, 54 P.2d 293 (1936). At 568, 54 P.2d at 295, this court held:

'It is a general rule that an accident does not arise in the course of employment when it occurs while the employee is on his way to work and before he has reached the premises of the employer or the place where his work is to be done.

'The exceptions to this rule are where the employer furnishes transportation to the place of work or the employee travels over a way expressly or impliedly authorized or acquiesced in by the employer, or while the employee is traveling upon the premises of the employer, or is coming from a place maintained by the employer for the use of the employees as an incident of their employment, or where the employee is using an automobile or other vehicle furnished by the employer or bringing property or money or some report or other document or message connected with or pertaining to the employer's business, or when the master controls, or has the right to control, the conduct of the servant.'

The evidence discloses defendant Kenney was employed by Rogers Construction, Inc., as a laborer uncovering and moving grade stakes. He commuted daily in his own car from his residence at Mosier, Oregon, to the job site. He was some six to eight miles from the job site at the time of the accident, which occurred about 6:30 a.m., and he was to start work at 7:00 a.m. He was not paid nor reimbursed for his travel or car expense. He was on the uncompleted section of the roadway which Rogers Construction was completing for the Oregon State Highway Department.

Plaintiff claims this case falls within two exceptions of Hantke v. Harris Ice Machine Works, Supra: 'While the employee is traveling upon the premises of the employer,' and 'or when the master controls, or has the right to control, the conduct of the servant.'

To buttress his position that defendant Kenney was traveling upon the premises of the employer, plaintiff cites Kowcun v. Bybee, 182 Or. 271, 186 P.2d 790 (1947).

Kowcun was a workmen's compensation case and one of the questions was whether plaintiff sustained the injury in the course and scope of her employment. However, the case can be distinguished on the facts. In Kowcun, the employer owned and provided a parking lot for employees. The plaintiff had parked her car in the employer's lot and was proceeding to the main gate when struck by a car. The employee had arrived at her place of employment and was proceeding as directed by the employer.

On the other exception, in Hantke 'when the master controls or has the right to control, the conduct of the servant,' plaintiff relies upon Cook v. United States, 240 F.Supp. 353 (D.Or., 1964); Kowaleski v. Kowaleski, 235 Or. 454, 385 P.2d 611 (1963); Barry v. Oregon Trunk Railway, 197 Or. 246, 253 P.2d 260 (1953); Knapp v. Standard Oil Co. of California, 156 Or. 564, 68 P.2d 1052 (1937); Tyler v. Moore, 111 Or. 499, 226 P. 443 (1924). Each of these cases can be distinguished on the facts from the case at bar.

In Kowaleski and in Gossett v. Simonson, 243 Or. 16, 411 P.2d 277 (1966), we approved the definition of scope of employment in the Restatement of Agency 2d, § 228, p. 504,

'General Statement

'(1) Conduct of a servant is within the scope of employment if, but only 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, and

'(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

* * *

* * *

'(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.'

The exception, as noted in Hantke, as to when the master controls or has the right to control the conduct of the servant has reference to the servant's duties. If the servant has not directly or indirectly entered upon his duties, the exception is not applicable. A plaintiff seeking damages from a servant's employer must prove that the harm-producing activity was in furtherance of the employer's business and that the employer had the right to exercise some degree of control over the workman in the conduct of such activity. Gossett v. Simonson, Supra.

Here, as mentioned earlier, defendant Kenney had not entered upon his duties and was performing no act for the benefit of Rogers Construction. The act of defendant Kenney driving his own car in the manner he did at the time of the accident had no connection with the work he was to perform for Rogers Construction, beginning one-half hour later. A supervisor of Rogers Construction knew that defendant Kenney and some other employees who lived east of the job site used the roadway, not open to the public, to reach the job site. However, there is no evidence that they did or could control them, and such employees could drive on U.S. Highway 30 to reach the job site via an underpass which was provided. The underpass was went from the scene of the accident.

We find that the court correctly decided the matter as a question of law and Rogers Construction, Inc., is not liable under the doctrine of Respondent superior.

The court, as a further basis for allowing Rogers Construction, Inc.'s motion for involuntary nonsuit, ruled that plaintiff's decedent was a trespasser or licensee and not entitled to recover as plaintiff did not allege any gross negligence or wanton misconduct on the part of defendant Rogers Construction, Inc. Plaintiff also assigns this as error.

In Count Two of the complaint, plaintiff alleges:

'That the defendants, and each of them, were grossly careless, reckless and negligent, and that defendants showed a reckless and wanton indifference to the rights of others in one or more of the following particulars, to-wit:

'(1) In operating his vehicle at a highly excessive and dangerous rate of speed under the circumstances then and there existing, to-wit: at a speed of approximately 85 miles per hour.

'(2) In failing to keep his vehicle under proper or any control.

'(3) In failing to keep a proper or any lookout.'

It is easily observed that each of the above allegations refer to the manner in which defendant Kenney was operating his vehicle. We have already concluded that Kenney was not acting in the scope of his employment for Rogers Construction at the time of the accident. Thus, defendant Rogers Construction could not be responsible in a Respondent superior sense for the manner in which Kenney drove his vehicle, whether it was driven in a negligent or grossly negligent manner.

Based on the above reasoning, we conclude that the trial court was correct in ruling that there was no gross negligence or wanton misconduct on the part of defendant Rogers Construction, Inc.

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