Hantke v. Harris Ice Mach. Works

• Decision Date: 18 February 1936
• Parties: HANTKE v. HARRIS ICE MACH. WORKS et al.
• Court: Oregon Supreme Court

54 P.2d 293

152 Or. 564

HANTKE v. HARRIS ICE MACH. WORKS et al.

Supreme Court of Oregon

February 18, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Action by Werner G. Hantke against the Harris Ice Machine Works and another for damages sustained in an automobile collision. From a judgment of involuntary nonsuit as to defendant the Harris Ice Machine Works, the plaintiff appeals.

Affirmed.

Robert T. Mautz, of Portland (R. E. Dennison and Wilbur, Beckett, Howell & Oppenheimer, all of Portland, on the brief), for appellant.

Clarence Phillips, of Portland (Griffith, Peck & Coke and Charles R Spackman, all of Portland, on the brief), for respondents.

KELLY Justice.

On the morning of October 5, 1933, shortly before 8 a. m., plaintiff was riding a motorcycle easterly on North Ainsworth street Portland. The defendant Freytag was driving his automobile southerly on North Delaware avenue, and in the intersection of these two streets the two vehicles collided, injuring plaintiff. Plaintiff contends that defendant Harris Ice Machine Works is liable for the negligence of defendant Freytag under the doctrine of respondeat superior.

Freytag was taking his daughter and two other young ladies to the Jefferson High School, intending thereafter to go to the place of business of defendant Harris Ice Machine Works to report for duty. The collision occurred before Freytag had arrived at the high school building, which was some three or four blocks out of direct line from Freytag's residence to the plant of his employer and codefendant, Harris Ice Machine Works. For about twelve years before the accident Freytag was employed by the defendant Harris Ice Machine Works as an erecting engineer. He was paid by the hour; his hours of employment were usually from 8 a m. to 4:30 p. m., although he was subject to an emergency call at any time. When so called, he would report at the plant of his employer, and his compensation and service would begin at the time he so reported. At his option, he could use his automobile for transportation, and during the hours intervening from the time his compensation so began each day until it ceased for the day. If he used his automobile within the city of Portland for transportation, he was reimbursed in the amount that otherwise he would have spent for street car fare in going from the plant of his employer to the place of work and in returning to said plant. If such use was made of his automobile outside of the city of Portland, he was paid mileage at the rate of 5 cents per mile. He was not allowed any pay or credit for using his automobile to ride from his home to the plant of his employer or to the place of his work when an installation contract required several days or weeks, at which time he would report at the place of such installation instead of first going to the place of business of his employer. Neither was he allowed any compensation for using his automobile in returning to his home. At times, during his working hours, he had carried material in his automobile from the ice machine company's plant to places where it was needed, for which he was remunerated by the ice machine company. There is nothing in the testimony tending to show that he had any such material, or any property whatever, in his possession or in his automobile belonging to his employer when the collision in suit occurred.

Stating the case most favorably to plaintiff, Freytag was going to his work upon the public streets of Portland on a route of his own choosing in his own automobile; and, at a place remote from the premises of his employer, he encountered and collided with plaintiff and plaintiff's motorcycle.

We can find no principle of law upon which to predicate liability on the part of defendant Harris Ice Machine Works for damages caused by Freytag.

The principle invoked by plaintiff comprises a maxim of the common law. In English, it is expressed by the mandate, "Let the superior respond." It means that the principal or master should be answerable for the acts of his agent or servant. It is based on the principle that a duty rests upon every man, in the management of his own affairs, whether by himself or by his agents or servants, so to conduct them as not to injure another, and that, if he fails in that duty and another is thereby injured, he shall answer for the damage. 21 R.C.L. 845.

Before this rule may be applied, it must be shown that the relationship of principal and agent or master and servant existed at the time the damage was done, and that the servant was acting in the course of his employment. The term "in the course of his employment," as here used, means "while engaged in the service of the master," and is not synonymous with the phrase "during the period covered by his employment." Slater v. Advance Thresher Co., 97 Minn. 305, 107 N.W. 133, 136, 5 L.R.A. (N.S.) 598.

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 case at bar does not come within any of the exceptions. Freytag was taking a course of his own choosing, had no property of his employer, was on no mission in the interest of his employer, was not in the pay of his employer, and was not subject to the orders of his employer until he arrived at the plant.

Perhaps the nearest approach of this case to any of the exceptions is due to the arrangement between the two defendants herein that Freytag would answer emergency calls at any time. It is not suggested that, at the time of the accident, he was answering any such call. It is said that he had been directed to report at the plant of his employer instead of returning to the place of extended installation of equipment at a brewery where he had been working for some time immediately prior to the collision; and that, after so reporting, he would go to Astoria. We think that situation does not take the case out of the general rule just announced.

The mere fact that an employee is on call does not render his employer liable. El Paso & S.W. Co. v. LaLonde, 108 Tex. 67, 184 S.W. 498; Perez v. Atchison, T. & S. F. Ry. Co. (Tex.Civ.App.) 192 S.W. 274.

The two cases last cited were instituted to recover for damages sustained by employees because of torts of employers, but the...