McIvor v. Savage

• Decision Date: 12 September 1963
• Citation: McIvor v. Savage, 220 Cal.App.2d 128, 33 Cal.Rptr. 740 (Cal. App. 1963)
• Court: California Court of Appeals
• Parties: Ora Jean McIVOR, also known as Ora Jean Ray, Plaintiff and Appellant, v. Norman SAVAGE, Arnie Tollefsen, et al., Defendants and Respondents. Civ. 7125.

Page 740

33 Cal.Rptr. 740

220 Cal.App.2d 128

Ora Jean McIVOR, also known as Ora Jean Ray, Plaintiff and Appellant, v.Norman SAVAGE, Arnie Tollefsen, et al., Defendants and Respondents.

Civ. 7125.

District Court of Appeal, Fourth District, California.

Sept. 12, 1963.

Francis J. Gabel and Jean Wunderlich, Los Angeles, for plaintiff and appellant.

Early, Maslach, Foran & Williams, and Kenneth H. Wechsler, Los Angeles, for defendants and respondents.

COUGHLIN, Justice.

The plaintiff, Ora Jean McIvor, brought this action to recover damages for injuries sustained as a result of a collision between an automobile driven by the defendant Tollefsen, in which she was riding as a 'passenger for a consideration' and an automobile driven by the defendant Savage.The plaintiff is the appellant herein, and the defendants are respondents.In her complaint, the plaintiff charged each of the defendants with negligence proximately contributing to the aforesaid collision.The defendants, by their answers, denied the material allegations of the complaint and, as a separate defense, alleged facts in support of their contention that at the time of the subject collision the plaintiff and defendants were co-employees of Beckman Instruments Company; that the injury sustained by the plaintiff was compensable under the workmen's compensation provisions of the Labor Code(Lab.Code, § 3201 et seq.) and that, by virtue of the provisions of § 3601 of that code, the plaintiff's right to recover such compensation was her exclusive remedy in the premises.

Pertinent parts of § 3601 provide:

'Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is * * * the exclusive remedy for injury * * * of an employee against the employer or against any other employee of the employer acting within the scope of his employment, * * *'

except that the person injured has a right to bring an action against a co-employee where the injury is caused by the willful and unprovoked physical act of aggression of the co-employee, the latter's intoxication, or an act by him which evinces a reckless disregard for the safety of the injured person.

The defendants moved for a summary judgment; contended that there was no triable issue of fact with respect to their special defense; and supported the same by an affidavit of the attorney for one defendant and by a declaration under penalty of perjury of the attorney for the other defendant in which each of them stated that all of the facts set forth therein were within his personal knowledge, and if called as a witness he would testify thereto under oath.From the affidavit and declaration aforesaid it may be concluded that there is no triable issue as to the following facts: That the accident in question occurred on the parking lot of Beckman Instruments Company; that the plaintiff and defendants then were employees of that company; that all of them were leaving work but had not left the parking area, which was under the control of their employer; that the plaintiff was in an automobile driven by the defendant Tollefsen who then 'had an accident' with the defendant Savage; that at the time her deposition was taken the plaintiff testified that she had been paid workmen's compensation benefits as the result of the injuries sustained by her in the accident; and that in this deposition she had not testified that her injuries were caused by the willful and unprovoked act of the defendants, by their intoxication, or by any act on their part evincing a reckless disregard for her safety.

The court granted the defendants' motions and entered a judgment of dismissal from which the plaintiff has appealed and contends: (1) That the evidence set forth in the defendants' affidavit and declaration does not establish their special defense because it does not show that at the time of the accident they were acting within the scope of their employment; (2) that this affidavit and declaration together with the plaintiff's counteraffidavit established the existence of a triable issue of fact on the question whether, at the time of the subject accident, the defendants were acting in the scope of their employment; (3) and that § 3601 as interpreted and applied by the trial court is unconstitutional.

A defendant's motion for summary judgment should be granted where it is supported by an affidavit establishing a complete defense to the action, and the plaintiff's affidavit in reply does not show a triable issue of fact with respect to that defense.(Security First Nat. Bank v. Ross, 214 A.C.A. 452, 460, 29 Cal.Rptr. 538;Keylon v. Kelley, 188 Cal.App.2d 490, 493, 10 Cal.Rptr. 549.)On the other hand, if the affidavit in support of the defendant's motion does not state facts establishing every element of his defense, the motion must be denied.(Hardy v. Hardy, 23 Cal.2d 244, 245, 143 P.2d 701;Murphy v. Kelly, 137 Cal.App.2d 21, 31, 289 P.2d 565.)

Initially it should be observed that the defendants' affidavit and declaration were wholly inadequate to establish that the plaintiff's action was not within the exceptions noted within § 3601, viz, an action for injuries caused by a co-employee's willful and unprovoked physical act of aggression, his intoxication, or his reckless disregard for the safety of the injured employee.The fact that the plaintiff, in her deposition, did not testify to facts which would bring her case within the noted exceptions does not establish their nonexistence.

However, the issues on appeal present question which should be determined by this court preliminary to a further consideration of the defendants' motions or a trial of the case.

The plaintiff's counteraffidavit stated, in substance, that she and the defendants, as employees of Beckman Instruments Company, went off duty at 3:30 p. m.; that all three of them then walked to the company's parking lot; that the two defendants boarded their respective automobiles; that she entered the automobile of the defendant Tollefsen, to be driven home; that the defendant Savage was driving his automobile from the parking lot at the time of the accident; and that neither she nor the defendants were acting within the 'course or scope' of their respective employments when the accident occurred.

The issue on appeal is whether the affidavits and declaration at hand present a triable issue of fact on the question whether the defendants, at the time of the subject accident, were acting within the scope of their employment by the Beckman Instruments Company.

The statement in the plaintiff's affidavit that the parties were not acting in the 'course or scope' of their employment 'is no more than a mere conclusion of law, an expression of her personal opinion to which she could not competently testify'(Murphy v. Kelly, supra, 137 Cal.App.2d 21, 28, 289 P.2d 565), and is not sufficient to raise a triable issue of fact.

The defendants contend that the uncontradicted evidence before the trial court established as a matter of law that, at the time of the accident, they were acting in the course of their employment; that the phrase 'scope of his employment' as used in § 3601 is synonymous with the phrase 'course of the employment' as used in § 3600 of the Labor Code, which prescribes the conditions precedent to recovery of workmen's compensation; and that their motions for summary judgment properly were granted.

The plaintiff counters with the contention that the phrase 'scope of his employment' embraces a more restricted area than the phrase 'course of the employment'; that the affidavits and declaration before the trial court established the existence of a triable issue of fact on the question whether the defendants were acting within the scope of their employment when the accident occurred; and that the order granting their motions was error.

Section 3600 of the Labor Code provides, in substance, for the recovery of compensation by an employee from his employer for an injury 'arising out of and in the course of the employment.'As used therein, the phrase 'course of the employment' relates to the factors of time and place contemplated by the employment (State Comp. Ins. Fund v. Ind. Acc. Com., 38 Cal.2d 659, 661, 242 P.2d 311;Scott v. Pacific Coast Borax Co., 140 Cal.App.2d 173, 178, 294 P.2d 1039;DeMirjian v. Ideal Heating Corp., 112 Cal.App.2d 251, 253-254, 246 P.2d 51.)It now is the settled rule that an injury may be received in the course of employment although it occurs after the employee shall have left the actual point where he has been working, and after he actually ceases to render services.(Smith v. Industrial Acc. Com., 18 Cal.2d 843, 847, 118 P.2d 6.)Thus, an injury sustained by an employee while leaving his place of work via a parking lot controlled by his employer, providing he does not tarry unreasonably, occurs in the course of his employment.(Cal. Cas. Ind. Exch. v. Ind. Acc. Com., 21 Cal.2d 751, 757, 135 P.2d 158;Smith v. Industrial Acc. Com., supra, 18 Cal.2d 843, 847, 118 P.2d 6;Peterson v. Moran, 111 Cal.App.2d 766, 768, 245 P.2d 540;Pacific Elec. Ry. Co. v. Indus. Acc. Com., 137 Cal.App. 245, 248, 30 P.2d 444.)This conclusion is based on the assumption that where the employee is permitted to use the employer's premises in going to and from his work 'the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached' and ends in point of time and space under converse conditions.(Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 222; 72 L.Ed. 507.)However, to be compensable under § 3600 and injury not only must occur in the course of employment, but it also must arise out of the employment.(State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 661, 242 P.2d 311.)To satisfy the latter requirement, there must be a causal relationship between the injury and...