Munyon v. Ole's Inc.

• Decision Date: 19 October 1982
• Court: California Court of Appeals Court of Appeals
• Parties: Lee MUNYON by Chuck MUNYON, her Guardian ad Litem, Donny Munyon and Chuck Munyon, Plaintiffs and Appellants, v. OLE'S INC., erroneously sued and served herein as Ole's Hardware, Defendant and Respondent. Civ. 63837.

Page 424

186 Cal.Rptr. 424

136 Cal.App.3d 697

Lee MUNYON by Chuck MUNYON, her Guardian ad Litem, Donny Munyon and Chuck Munyon, Plaintiffs and Appellants, v. OLE'S INC., erroneously sued and served herein as Ole's Hardware, Defendant and Respondent.

Civ. 63837.

Court of Appeal, Second District, Division 5, California.

Oct. 19, 1982.

Hearing Denied December 15, 1982.

Brenner & Rostand, Van Nuys, and Leonard Sacks, Northridge, for plaintiffs and appellants.

Stearns & Nelson, and Lawrence J. Weisberg, Hollywood, for defendant and respondent Ole's Inc.

FEINERMAN, Presiding Justice.

In this action for personal injuries, plaintiffs appeal from an order of dismissal following the granting of a motion for summary judgment in favor of defendant Ole's Inc.

Plaintiff Lee Munyon was severely injured when she was struck by a vehicle operated by defendant Patricia Ann Edwards on November 30, 1979. Plaintiff and her parents, who are coplaintiffs, joined Ole's Inc. as a defendant and alleged in their complaint that the accident occurred when Edwards was acting within the scope of her employment by Ole's. Defendant Ole's moved for summary judgment on the ground that there were no triable issues of fact upon which to impute liability to Ole's as Edwards' employer. Our recital of facts, which follows, is based on the moving papers and the opposition thereto considered by the trial court in ruling on the motion.

Patricia Ann Edwards was employed as a cashier by Ole's Inc. Her duties were limited to ringing up sales on a cash register and the occasional marking and pricing of inventory. She never made any deliveries of merchandise and stated that she never used her car in connection with her duties as an Ole's employee. On Friday, November 30, 1979, Edwards decided to drive to Ole's to pick up her paycheck for the work week commencing November 19, 1979 and ending on November 25, 1979. Ole's payday was always the Friday following the work week which ended the previous Sunday. Employees who were not assigned to work on a Friday could come in to pick up their paycheck on a Friday or they could wait until the next time they were on the premises to pick up their paychecks. Edwards was not assigned to report to work on Friday, November 30, 1979, and testified at her deposition that she decided to drive to the store to pick up her paycheck for her "own convenience." After picking up her paycheck, Edwards walked to a nearby bank. She found the bank was very busy and decided to forgo her banking transaction and go home. She returned to her automobile and had proceeded one block from the Ole's store when she struck plaintiff Lee Munyon.

"Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. [Citations.]" (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785; Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 596, 125 Cal.Rptr. 557, 542 P.2d 981; Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953.)

In their effort to establish defendant Ole's respondeat superior liability, plaintiffs rely on a number of workers' compensation cases holding that the act of any employee in collecting his pay, or any act incident to the collection of pay, is an act "arising out of and occurring in the course of employment." Plaintiffs also contend that the evidence establishes that Ole's is liable under the "special mission" or "special errand" exception to the "going and coming" rule. Finally, the plaintiffs argue that the "going and coming" rule should be narrowly construed by this court in a case such as this where it is alleged that the risk that materialized was "inherent in or created by the enterprise." We proceed to examine the plaintiffs' arguments.

I.

Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment. (Civ.Code, § 2338.) The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721, 159 Cal.Rptr. 835, 602 P.2d 755.) As a general rule, whether an act is within the scope of employment is a question of fact. However, where the facts are undisputed and no conflicting inferences are possible, the question is one of law. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 963, 88 Cal.Rptr. 188, 471 P.2d 988; Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal.App.3d 947, 956, 171 Cal.Rptr. 95.) Here, there is no dispute over the operative facts and we deem the applicability of the doctrine of respondeat superior to be a matter of law.

Plaintiffs cite a number of workers' compensation cases which hold that activities incident to collecting wages arise out of and occur in the course of employment. (Truck Ins. Exchange v. Ind. Acc. Com. (1946) 27 Cal.2d 813, 818-819, 167 P.2d 705; Pacific Indem. Co. v. Ind. Acc. Com. (1945) 26 Cal.2d 509, 514, 159 P.2d 625; State Comp. Ins. Fund v. Indus. Acc. Com. (1924) 194 Cal. 28, 34, 227 P. 168.) These cases are bottomed in the proposition that the duty to pay and the right to receive compensation is an integral part of the contract of employment and risks inherent in activities contemplated by the employment are within the safety net of the workers' compensation laws. Plaintiffs then assert Edwards was going "in the usual manner to a place designated by the employer" to collect the wages due to her for work previously performed and conclude she was acting within the scope of her employment under the doctrine of respondeat superior.

If we assume, for purposes of further analysis, that Edwards was engaged in an activity "arising out of and occurring in the course of her employment," it does not resolve the problem before us. Workers' compensation cases can be helpful in determining vicarious liability of the employer for torts of the employee, but they are not controlling. (Castro v. State of California (1977) 70 Cal.App.3d 156, 159, 138 Cal.Rptr. 572.) "[T]he differences between the common law and workmen's compensation usage of the term 'employment' stem from the fundamentally different purposes served by the employment concept in each context. Thus, whereas at common law the 'master-servant' concept was utilized primarily to delimit the scope of the master's vicarious tort liability and was thus concerned with injuries caused by the employee, the basic inquiry in compensation law involves which injuries to the employee should be insured against by the employer. [Citations.] Although there is considerable overlap between the two fields, in each context the determination of the presence or absence of a sufficient 'employment' relationship must ultimately depend on the purpose for which the inquiry is made." (Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 777-778, fn. 7, 100 Cal.Rptr. 377, 494 P.2d 1.) As the court noted in Castro v. State of California, supra, 70 Cal.App.3d 156 at page 159, 138 Cal.Rptr. 572, "The Workers' Compensation Act is a protective statute [citations] whose provisions must be liberally construed in favor of protecting injured workers. (Lab.Code, § 3202.) It is a shield for the injured worker. The imposition of vicarious tort liability, on the other hand, is a sword. Vicarious liability is a method of extending tort liability beyond those directly and immediately negligent."

This ideational difference is highlighted by the fact that an injured worker need not prove fault as a condition precedent to the recovery of benefits. Contrast this with the obligation of a plaintiff in an automobile accident case who has the burden of proving fault by a preponderance of the evidence before liability can be imposed on a defendant. There are sound economic and sociological reasons for these distinctions. The goal of workers' compensation laws is to rehabilitate the injured worker, not to indemnify. (See 2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1977) § 1.05.) In a tort action, the objective of a damage award is indemnification--compensating the injured party for the loss and harm suffered by him and proximately caused by the accident.

Thus, we conclude that the cases cited by the plaintiffs interpreting the words "arising out of and occurring in the course of employment" for the purpose of determining liability under the workers' compensation laws, although helpful for some reference purposes, are not determinative in the interpretation of the words "acting within the scope of employment" under the doctrine of respondeat superior. (Church v. Arko (1977) 75 Cal.App.3d 291, 298-300, 142 Cal.Rptr. 92.) "[S]cope of employment defines a more restricted area of employee conduct than the customary phrase 'arising out of and in the course of employment.' ..." (Saala v. McFarland (1965) 63 Cal.2d 124, 128-129, fn. 3, 45 Cal.Rptr. 144, 403 P.2d 400.) An employee can suffer an injury that is compensable under workers' compensation laws and at the same time not be within the scope of employment under the...