Logan v. Phillips, s. 66166
| Decision Date | 24 January 1995 |
| Docket Number | Nos. 66166,66167,s. 66166 |
| Citation | 891 S.W.2d 542 |
| Parties | Larry LOGAN, Plaintiff-Appellant, v. Bart PHILLIPS and Union Electric Company, Defendants, and The City of Arnold, Defendant-Respondent. Larry LOGAN and Darlene Logan, Plaintiffs-Appellants, v. Bart PHILLIPS and Union Electric Company, Defendants, and The City of Arnold, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Dennis H. Tesreau, Hillsboro, for appellant.
Gerard T. Noce, Thomas M. Buckley, St. Louis, for respondent.
Plaintiffs, Larry and Darlene Logan, appeal from the trial court's grant of summary judgment in favor of defendant, City of Arnold (City), in plaintiffs' actions for wrongful death and bodily injury. We affirm.
On March 16, 1992, a vehicle driven by defendant Bart Phillips, a police officer for the City, collided with a car driven by plaintiff Darlene Logan. Darlene suffered bodily injuries, and her daughter Irene was killed.
On the day of the accident, Officer Phillips worked from 6:30 a.m. to 3:00 p.m. Officer Phillips had completed his day shift and, at the time of the accident, was driving his personal vehicle from his home to the Arnold Municipal Court because he was under subpoena to testify on behalf of the City at 7:00 p.m. He was in uniform at the time of the collision and was carrying a department firearm. Officer Phillips was not being paid for his time or travel from his residence to the court. He would have been compensated only for the time he actually spent in court that evening.
Plaintiffs sought to hold City liable under the doctrine of respondeat superior. City filed a motion for summary judgment contending that, as a matter of law, Officer Phillips was not acting within the course and scope of his employment as a police officer when he was driving from his residence to court. The trial court sustained City's motion and designated its judgment final for purposes of appeal. See Rule 74.01(b).
Plaintiffs claim the trial court erred in granting City's motion for summary judgment because a genuine issue of material fact existed whether Officer Phillips was acting within the scope of his employment at the time of the accident. Plaintiffs contend this issue was a question of fact for the jury. See Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 766 (1943).
An employer is generally not liable under the doctrine of respondeat superior to one injured by an employee's negligent operation of a vehicle on his journey to and from work. Delozier v. Munlake Const. Co., 657 S.W.2d 53 (Mo.App.1983). Ordinarily, getting to the place of work is a personal problem of the employee and not a part of his services to his employer. 7A Am.Jur.2d Automobiles and Highway Traffic § 700 (1980). In absence of some special benefit to the employer other than the mere making of the services available at the place where they are needed, the employee is not acting within the scope of his employment in traveling to work. Id. Missouri cases are in accord with this general "going and coming" rule. Sharp v. W. & W. Trucking Co., 421 S.W.2d 213, 219 (Mo.1967). Inquiries to determine liability include whether the employer had any control or right of control over how, when or if the employee got to his place of employment. Id. at 220.
Here, it is undisputed that Officer Phillips was going to work at the time of his accident. The circumstances surrounding this accident place Officer Phillips' activities squarely within the "going and coming" rule. He was driving his own personal vehicle as a matter of choice. He was not reimbursed for any expenses incurred while traveling from his home to the court. His pay did not start until he arrived at the courthouse. The purpose of his journey was to appear at the courthouse at the designated time to provide his required testimony. He was not performing any official police duties at the time of the collision. City had no right to control Officer Phillips in the operation of his vehicle or in the method or route of transportation he chose. The use of his vehicle was not of such vital importance in furthering City's business that control over it could reasonably be inferred.
Further, Officer Phillips' activities did not come within the "special errand" exception to the going and coming rule. The special errand exception applies when an employee, having identifiable time and space limits on his employment, makes a journey which would...
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