Patterson v. Southeastern Newspapers, Inc., No. A99A2225

• Decision Date: 29 March 2000
• Docket Number: No. A99A2225, No. A99A2238.
• Citation: 533 S.E.2d 119,243 Ga. App. 241
• Parties: PATTERSON v. SOUTHEASTERN NEWSPAPERS, INC. Lewis v. Southeastern Newspapers, Inc.
• Court: Georgia Court of Appeals

533 S.E.2d 119

243 Ga. App. 241

PATTERSON v. SOUTHEASTERN NEWSPAPERS, INC.

Lewis v. Southeastern Newspapers, Inc.

Nos. A99A2225, A99A2238.

Court of Appeals of Georgia.

March 29, 2000.

Warlick, Tritt & Stebbins, Charles C. Stebbins III, Augusta, for appellants.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Augusta, Barrickman, Allred & Young, Fredric S. Young, Atlanta, for appellee.

POPE, Presiding Judge.

Generally, an employer is not liable for injuries caused by its employees during their commute to or from work but may be liable where an employee is on a special mission at the direction of the employer. Mariko Patterson's husband was struck and killed by an employee of Southeastern Newspapers, Inc. while the employee was driving home after delivering newspapers as a substitute for the assigned carrier who was ill. The main issue in this case is whether Southeastern should be held liable for the employee's negligence when the employee was called in outside of his regular hours to cover for a missing employee. Because there are facts supporting the conclusion that the employee was on a special mission for Southeastern, the trial court improperly granted summary judgment for the newspaper.¹

Construed in favor of Patterson, the facts show that Joshua Bourgoin was a salaried, full-time employee of Southeastern at the time of the accident. His title was "relief district manager," and his regular duties included overseeing distribution points for newspaper delivery carriers in place of absent district managers. He oversaw distribution points on Monday and Tuesday mornings from either 2:30 or 4:30 a.m. to 9:30 a.m. He made sure carriers came to work and got their newspapers, he took care of complaints, and he covered for absent drivers. But he delivered papers only if one of the carriers did not show up. On Monday and Tuesday he also attended a meeting at the office from 9:30 to 10:30 a.m. On Wednesday he attended a meeting beginning at 10:30 a.m. and had a "solicitation meeting" that involved soliciting sales in the afternoon.

For the remainder of the week he was on call. On those days, if called to do so, he covered for district managers who could not report to work, or he "threw" a route if a carrier did not show up and the district manager was already covering for another missing carrier. Bourgoin might learn he was needed for such an assignment as early as Monday or Tuesday, but he often received a call the night before, and sometimes the call came an hour before he was needed. If he had other plans, he was not required to come in. He was not called for this type of work every week. He did not receive extra pay for this work. Southeastern acknowledges that his assigned hours varied week to week depending on whether and to what extent he was called in after Wednesday and that he was not required to punch a clock. Bourgoin was salaried, but he also received a fixed "automobile allowance" of approximately $184, every two weeks, based on an estimate by Southeastern of the amount he would have to drive his car during the course of his duties.

On Wednesday night, January 7, 1998, Bourgoin got a call to cover for a carrier on Thursday morning. He was not scheduled to go in that day. He finished the route around 6:00 a.m. and headed home. On the way, his car struck and killed 67-year-old Jack Patterson.

1. The general rule of respondeat superior holds: "When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.]" Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 777, 257 S.E.2d 186 (1979). With regard to commuting to and from work, the general rule is that the employee is acting for himself at that time and, therefore, the employer is not to be held liable for an injury occurring during that time. Jones v. Aldrich Co., 188 Ga.App. 581, 583(1), 373 S.E.2d 649 (1988).

However, there is an exception to the general rule where the employee undertakes a special mission at the direction of the employer. Aldrich, 188 Ga.App. at 583(1), 373 S.E.2d 649. As stated in Aldrich,

Where the employee, before or after customary working hours, is on his way home after performing, or on the way from his home to perform, some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place where the work is performed, or from the place of performance of the work to the home, such injury is considered as arising out of and in the course of the employment.

(Citations and punctuation omitted.) Id.

Although Southeastern contends that Bourgoin was not on call but merely driving home from his regularly assigned duties, the facts could support the conclusion that the exception found in Aldrich is applicable here. That exception requires "that the errand or mission itself be a `special' or uncustomary one, made at the employer's request or direction." Hargett's Tel. Contractors v. McKeehan, 228 Ga.App. 168, 170, 491 S.E.2d 391 (1997).

Construing the facts in favor of Patterson, Bourgoin was not scheduled to go to work on Thursdays. When he was called he did not have a set route; he filled in wherever the need arose. He was not merely being called to report to his regular distribution point or to take care of his normal assignment. Rather, on this particular occasion, he was called on short notice to go directly to a distribution point where there was a need. It is true that being called in was not uncommon, but it still required a special request by Southeastern. Southeastern also gained an incidental benefit from the arrangement. By putting Bourgoin on call in his own car, Southeastern created for itself a flexible way of covering for missing employees in the middle of the night. This benefit would not result from ordinary commuters with regular schedules. When he completed the assignment, Bourgoin proceeded directly toward home from where he found himself when he finished throwing the route.

The facts in favor of Southeastern suggest that Bourgoin's on-call day was very much like his regular work day, the main difference being that on this particular day he did not know where he was going until he got the call to report.

Although reasonable minds could differ, there is an issue of fact as to whether Bourgoin was acting in the scope of his employment when he went in on Thursday morning, and therefore the court erred in granting summary judgment to Southeastern on this legal theory.

Schofield v. Cox Enterprises, 212 Ga.App. 354, 441 S.E.2d 693 (1994), is not controlling. There the employee was on his way home from his scheduled daily work and on a personal errand. Id. at 354, 441 S.E.2d 693. Marketing Sales Indus. &c. v. Roberts, 118 Ga.App. 718, 165 S.E.2d 319 (1968), is also distinguishable. There the employee was traveling home after being off duty for a period of time during which he stopped for two drinks at a bar. Id.

We find support for this result in two cases from other jurisdictions facing similar facts. In Evington v. Forbes, 742 F.2d 834 (4th Cir.1984), the Fourth Circuit applying North Carolina law held that where an on-call hospital employee had an accident while en route to the hospital in response to an emergency call, the facts supported the conclusion that he was operating in the scope of his employment. One distinction in Evington, however, is that the employee was paid overtime for his on-call work. Id.

In Robinson v. George, 16 Cal.2d 238, 105 P.2d 914 (1940), the Supreme Court of California held that there was an issue of fact whether a newspaper delivery person was acting within the scope of his duties when, outside of his regular hours, he was on call to deliver newspapers to addresses missed by the regular carrier. The high court noted the standard rule—that an employee going to or from work is not considered to be acting in the scope of his employment. But because the employee had to remain on call and make deliveries as ordered, these calls could be considered special errands and therefore an exception to the general rule. In Robinson, as in Evington, the employee was paid for the extra work.

Although Bourgoin was not paid extra for his on-call assignments, he was salaried and received a fixed automobile allowance. Both forms of compensation could have been intended to compensate Bourgoin for his regular and on-call work. Thus, the distinction noted above for Evington and Robinson does not control this case.

We do not hold that the mere fact that Bourgoin was on call means that he was acting within the scope of his employment. See Sherar v. B & E Convalescent Center, 49 Cal.App.3d 227, 229, 122 Cal.Rptr. 505 (1975) ("on-call" employee reporting to her...