Miller v. Reiman-Wuerth Co.
| Decision Date | 27 July 1979 |
| Docket Number | No. 5074,REIMAN-WUERTH,5074 |
| Citation | 598 P.2d 20 |
| Parties | Patricia A. MILLER and Harry M. Miller, Appellants (Plaintiffs below), v.COMPANY, a Wyoming Corporation, Appellee (Defendant below), James W. Grandpre, Wyoming Beverage, Inc., Oliver Olsen, d/b/a Frontier Distributing Co., the State of Wyoming, State Highway Commission of Wyoming, and City of Cheyenne(Defendants below). |
| Court | Wyoming Supreme Court |
David H. Carmichael, of Carmichael, McNiff & Patton, Cheyenne, and John E. Stanfield, of Smith, Stanfield & Scott, Laramie, signed the briefs, and David H. Carmichael, Cheyenne, appeared in oral argument on behalf of appellants.
David D. Uchner and Nick Kalokathis, of Lathrop & Uchner, P.C., Cheyenne, signed the brief and David D. Uchner, Cheyenne, appeared in oral argument on behalf of appellee.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
Appellants-plaintiffs appeal from a summary judgment in favor of appellee-defendant (Reiman-Wuerth Company) in which the District Court determined that such be final and that there was no just reason for delay in the entry of it. Appellee, Reiman-Wuerth Company, was only one of several defendants in an action for alleged damages resulting from a multi-vehicle collision. The driver and owner of one of the vehicles involved in the collision, James W. Grandpre (also a defendant), was an employee of appellee. Appellants state the issue on appeal to be: "Is there a genuine issue of material fact concerning the vicarious liability of Appellee for the acts of its servant (Grandpre) which caused damage to the (appellants)?" The trial court found that there was no genuine issue as to any material fact and that appellee was entitled to a summary judgment as a matter of law. We affirm.
Grandpre was employed as a carpenter by appellee on a construction jobsite in Cheyenne. On January 6, 1977, Grandpre requested permission to leave the job for the purpose of depositing his paycheck before 3:00 p. m. in a local bank so that some of his outstanding checks would not be dishonored. Also, he stated that he felt his ex-wife's employment by the bank might be jeopardized if his account were overdrawn. He was granted the requested permission by his supervisor.
It was the policy of appellee to allow employees to take time off for such personal activities, but it expected employees to take only the time necessary to accomplish such, and it did not pay employees for the time involved therein. Grandpre made his request and made his trip to the bank under these conditions. He drove his own automobile to the bank, made the deposit, and was involved in the collision while returning to the jobsite. He had never driven his own automobile on appellee's business, but was furnished a vehicle owned by appellee for such purpose.
The foregoing facts are not in dispute. The dispute arises over appellants' position: (1) that the trip was, at least in part, for the benefit of appellee or was employment related inasmuch as it contributed to Grandpre's "happiness" and thus made him a better and more efficient employee all to appellee's benefit as evidenced by appellee's policy which made the trip possible; (2) that appellee exercised control over the trip by requiring Grandpre to return to work immediately after completing his personal activity; and (3) that the determination of these two things (and thus the determination of whether or not the trip was in the scope of employment) was a question of fact for the jury. The fallacy of appellants' position lies in a misunderstanding or misapplication (1) of the definition of the term "scope of employment" and (2) of those issues in this matter that are questions of fact.
The meaning and application of the term "scope of employment" has necessitated considerable judicial attention. The general principles relative thereto are set out in 1 Restatement of Agency 2d (ALI 1958), pp. 504-524, as follows:
§ 231. Criminal or Tortious Acts "An act may be within the scope of employment although consciously criminal or tortious.
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