Luth v. Rogers & Babler Const. Co.

• Decision Date: 19 March 1973
• Docket Number: Nos. 1621,1623,s. 1621
• Parties: Anthony LUTH and Jeannette Luth, Appellants, v. ROGERS AND BABLER CONSTRUCTION COMPANY, Appellee. ROGERS AND BABLER CONSTRUCTION COMPANY, Appellant, v. Anthony LUTH and Jeannette Luth, Appellees.
• Court: Alaska Supreme Court

Page 761

507 P.2d 761

Anthony LUTH and Jeannette Luth, Appellants, v. ROGERS AND BABLER CONSTRUCTION COMPANY, Appellee.

ROGERS AND BABLER CONSTRUCTION COMPANY, Appellant, v. Anthony LUTH and Jeannette Luth, Appellees.

Nos. 1621, 1623.

Supreme Court of Alaska.

March 19, 1973.

William M. Erwin, Anchorage, for appellants Anthony and Jeannette Luth in No. 1621, and appellees in No. 1623.

Charles P. Flynn, Burr, Pease & Kurtz, Inc., Anchorage, for appellee Rogers and Babler Constr. Co. in No. 1621, and appellant in No. 1623.

Before RABINOWITZ, C. J., CONNOR and BOOCHEVER, JJ.

OPINION

RABINOWITZ, Chief Justice.

Anthony and Jeannette Luth were driving south on the Seward Highway when their car collided with another driven by Wayne Jack and owned by John and Freida Knox. The accident occurred approximately two miles north of Twenty Mile Creek when Jack attempted to pass another vehicle going north. On the day of the accident, and for the previous six weeks, Wayne Jack was employed by Rogers and Babler Construction Company as a flagman on a road construction project. At the time of the accident, he was returning home to Anchorage from his jobsite at Twenty Mile Creek, having completed a 7 a. m. to 5:30 p. m. workday. Since he did not live near the jobsite, Jack commuted approximately 25 miles to work by car everyday. The Master Union Agreement under which Jack worked provided for payment of $8.50 daily additional remuneration, since the jobsite was located a considerable distance from Anchorage. However, all of Rogers' employees on this particular construction project received the $8.50 additional remuneration whether they commuted from Anchorage or lived near the jobsite.

At trial, Rogers moved for a directed verdict, arguing that it could not be liable on the basis of respondeat superior, since Jack was not acting within the scope of his employment at the time of the accident. In regard to this motion, Rogers conceded that Jack's negligent driving caused the collision with the Luths' vehicle. The trial court denied Rogers' motion and in turn granted Luths' motion for directed verdict, ruling as a matter of law that Rogers was liable under the respondeat superior doctrine.

After the jury returned verdicts of $4,500 and $2,500 for Anthony and Jeannette Luth respectively, Rogers moved for a $3,500 reduction. Rogers based its motion on the fact that the Luths had received $3,500 from John and Freida Knox, owners of the vehicle driven by Wayne Jack at the time of the accident.

Under the doctrine of respondeat superior, an employer is liable for negligent acts or omissions of his employee committed in the scope of his employment. However Rogers attempts to avoid liability for Jack's negligence by relying on the so-called 'going and coming' rule. Under this rule, an employee is ordinarily considered outside the scope of his employment while going to and from work. ¹ Some courts justify this rule by reasoning that ordinarily the employment relationship is suspended and thus the employer has no right to control the employee from the time the employee leaves his work until he returns. ² Others reason that while commuting the employee is not rendering service growing out of, or incidental to, his employment. ³

The Luths attempt to circumvent the going-and-coming rule by urging this court to obliterate the distinction between the tort concept 'in the scope of employment' and the workmen's compensation concept 'arising out of and in the course of employment.' As part of their argument, the Luths emphasize that workmen's compensation law recognizes an exception to the going-and-coming rule for employees who receive travel allowances for commuting to and from remote jobsites and who are injured while so commuting. ⁴

Until recently, this court maintained that respondeat superior issues would be resolved by applying the 'right to control' test and other factors delineated in the Second Restatement of Agency. ⁵ Then, in Fruit v. Schreiner, ⁶ we adopted a modified 'enterprise theory' of respondeat superior, without rejecting Restatement criteria. In Fruit, we noted the similarity between Alaska workmen's compensation policy and the enterprise theory of vicarious tort liability. But we did not equate the tort concept 'in the scope of employment' with the workmen's compensation concept 'arising out of and in the course of employment.' Nor have other decisions of this court used these concepts interchangeably. ⁷ Moreover, we do not discern a trend in other jurisdictions to equate these two concepts. ⁸

While workmen's compensation law and respondeat superior doctrine both involve allocations of costs regarding industrial accidents, they differ in scope. Workmen's compensation benefits turn solely upon whether the employee was injured while performing an activity related to his job-and 'relatedness' is usually a function of benefit to the employer. In contrast, respondeat superior subjects employers to liability for injuries suffered by an indefinite number of third persons. To limit this burden of liability, the narrower concept, ⁹ 'scope of employment,' has long been tied to the employer's right to control the employee's activity at the time of his tortious conduct. We do not consider the right to control as being a prerequisite to a holding of liability, but it is a factor that may be considered in determining whether the employee's activity is sufficiently related to his employer's enterprise. While the employer's benefit from the employee's activity is relevant to the existence of vicarious liability, benefit is not its sole determinant. ¹⁰ We therefore reject the Luths' argument that workmen's compensation law be applied in this tort case.

By rejecting the Luths' primary argument made in support of the trial court's directed verdict, however, we do not necessarily hold that Rogers cannot be vicariously liable for Jack's negligence. Fruit v. Schreiner holds that resolution of scope of employment questions will 'depend primarily on the findings of fact in each case' ¹¹ and that the 'factual determination generally is left to the jury.' ¹² For example, in determining the applicability of a particular exception to the going-and-coming rule, the Supreme Court of Washington stated:

The 'exceptions' to the general rule, to which appellants refer, generally, if not invariably, spring from the particular facts and circumstances of the cases out of which they arise. And, in those instances where there is any valid evidentiary dispute, conflict or interpretative issue surrounding the employment status of an employee, while going to or coming from his day's work, the applicability of a recognized exception to the general rule becomes a question of fact to be resolved by the trier of the facts. It is only when the dispositive facts relative to the questioned employer-employee relationship are without dispute, or are such as to lend themselves to but one conclusion, that they compel a given determination. ¹³ (Emphasis added.)

Moreover, the Restatement recognizes that scope of employment questions are jury issues where conflicting inferences can be drawn from undisputed facts. ¹⁴

While in the case at bar the facts were undisputed, the jury, applying Restatement criteria, could have reasonably drawn conflicting inferences as to whether Jack was acting in the scope of his employment with Rogers at the time of the accident. Rogers did not expressly require its Anchoragebased employees to commute by automobile to the Twenty Mile Creek jobsite. On the other hand, Jack's employment at this jobsite some 25 miles from his home in Anchorage necessitated his driving to work, since Rogers did not establish a work camp or provide transportation facilities for its employees. ¹⁵ Thus, a jury might reasonably infer that Rogers implicitly authorized its employees to commute by automobile and that such commuting was within the scope of Jack's employment. ¹⁶ The jury could have reasoned that the additional $8.50 remuneration induced Anchorage-based laborers to commute to Rogers' out-of-town construction project, thus benefitting Rogers. Since the accident occurred during one of these commuting trips, it would not be unfair to require Rogers to pay for the Luths' resulting injuries. ¹⁷ On the other hand, the record discloses that Rogers paid its employees the additional $8.50 regardless of whether they commuted to work. Thus, the jury might reasonably infer that the $8.50 was merely a mileage or inconvenience allowance, and that Jack was not on company time while driving home from work. Since Rogers had no right to control Jack's actions after he completed his workday, a jury could have concluded that Jack was not acting within the scope of his employment. ¹⁸

Since there is substantial evidence from which the jury might have found either that Jack was, or was not, acting within the scope of his employment, we conclude that the trial court erred in directing a verdict for the Luths on the respondeat superior-liability issue. Our holding as to the respondeat superior issue requires that the judgment below be set aside and the matter remanded for a new trial. Nevertheless, we reach the Luths' appeal in order to clarify the proper procedure to be followed regarding verdict reductions.

The automobile Jack was driving at the time of the accident was loaned to him by its owners, John and Freida Knox. Before bringing suit against Rogers in 1967, the Luths executed a covenant not to sue the Knoxes with respect to the accident. The Knoxes paid the Luths $3,500 for the covenant, the Luths stipulating they neither intended to release any other party from liability nor to accept $3,500 as full satisfaction for their injuries. During the trial, Rogers attempted to introduce the covenant into evidence for the avowed purpose of impeaching Anthony Luth's testimony that he had never asserted any claims against another person with respect to the accident. The...