Rowe v. Colwell

• Decision Date: 26 February 1976
• Docket Number: Docket No. 24497
• Parties: Richard T. ROWE and Karen Rowe, Plaintiffs-Appellants, v. Donald W. COLWELL et al., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 284

241 N.W.2d 284

67 Mich.App. 543

Richard T. ROWE and Karen Rowe, Plaintiffs-Appellants, v. Donald W. COLWELL et al., Defendants-Appellees.

Docket No. 24497.

Court of Appeals of Michigan.

Feb. 26, 1976.

Released for Publication May 5, 1976.

Raymond L. Krell, Detroit, for plaintiffs-appellants.

Ronald E. Westen, Detroit, for Colwell.

Lowell C. Stellberger, Detroit, for Mfrs. Nat. Bank.

Before McGREGOR, P.J., and BASHARA and ALLEN, JJ.

PER CURIAM.

Plaintiffs appeal from an order granting summary judgment in favor of Manufacturers National Bank of Detroit based on plaintiffs' failure to state a cause of action GCR 1963, 117.2(1), and because there did not exist any material issue of fact, GCR 1963, 117.2(3). ¹ The motion was granted based on plaintiffs' amended complaint, certain depositions hereinafter mentioned and an affidavit by counsel for defendant bank all of which collectively considered established the fllowing basic facts.

Defendant, Donald L. Colwell, was a loan officer of defendant Manufacturers National Bank of Detroit. On September 25, 1970, he was invited by Duke Brothers, a builder doing business with the bank, to an open house party held in the club room of the Independence Green Apartments, a project built by Duke Brothers in Farmington Township. There, he was served alcoholic beverages. The party then adjourned to the Huron River Hunting and Fishing Club in nearby Farmington Township for dinner, at which alcoholic beverages were again partaken by Colwell. Following the dinner Colwell was invited by Don B. Dean, vice president of defendant bank to come to Dean's home in Northville to see Dean's new pool table and play pool. Colwell proceeded to the Dean home sometime between 9:30 and 10 p.m., where he played pool and again partook of alcoholic beverages. He left the Dean home about 11:15 p.m. driving a 1967 Chevrolet station wagon owned by his wife, defendant Joanne Colwell, and proceeded to drive towards home in Royal Oak. He proceeded homeward driving at a high rate of speed, greatly in excess of the lawful limit and in a wilful and wanton and reckless manner under the influence of intoxicating liquors. In the vicinity of 15771 at 14-Mile Road, his automobile struck plaintiff Richard Rowe who a few minutes earlier had stopped to assist police officers at the scene of a prior accident and was sweeping glass from the eastbound lane of travel onto the south shoulder of 14-Mile Road.

The standard for review of a motion granting summary judgment for failure to state a claim, GCR 1963, 117.2(1) (also referred to as failure to state a cause of action), is fully set forth in Sanders v. Clark Oil Refining Corp., 57 Mich.App. 687, 689, 226 N.W.2d 695 (1975); Greenfield Construction Co. v. City of Detrot, 66 Mich.App. 177, 238 N.W.2d 570 (1975), and Van Liere v. State Highway Department, 59 Mich.App. 133, 229 N.W.2d 369 (1975). Review is limited to the well pleaded facts in the complaint sans reference to depositions or affidavits. Any conclusion which may reasonably be drawn from the factual allegations may be considered. Paragraphs 4--10 inclusive and paragraph 16 allege that at the various functions Colwell was acting in furtherance of both past and future bank business relationships and was within the scope of his employment. We reject the claim that said paragraphs are not 'well pleaded facts' but are mere conclusions of law. Though the pleadings could have been more detailed we find that the statements made therein are both statements of law and fact and are no more conclusions of law than the allegations found in Sanders and Greenfield, supra. ² A 117.2(1) motion tests only the legal, not the factual, sufficiency of the pleadings. Van Liers, supra, 137. To the extent that the trial court based its ruling on subsection (1) of GCR 1963, 117.2 it did so erroneously.

Did the trial court also err in ruling under subsection (3) of GCR 1963, 117.2 that there was no genuine issue as to any material fact? ³ Unlike appellate review under subsection (1), subsection (3) review must include consideration of all depositions and other documentary evidence. Hutchings v. Dave Demarest & Co., 52 Mich.App 274, 278, 217 N.W.2d 72 (1974). Upon review of all such material, summary judgment is not to be granted unless, after giving the benefit of every reasonable doubt to the party opposing the motion, there is no genuine issue as to any material fact. Two depositions of Colwell and the deposition of Dean fully describe the circumstances of the afternoon and evening preceding the accident. Upon careful review of the depositions we find no dispute as to the facts appearing therein. However, we do find a major dispute as to the conclusion to be drawn from such facts, viz: was Colwell acting within the scope of his employment or performing services which benefited him employer. ⁴

The depositions disclose that the afternoon party was not arranged or sponsored by defendant bank but was sponsored by Duke Brothers who from time to time did business with the bank; that Colwell was not personally invited by Duke Brothers but attended after he was informed of the party by one of his bank superiors who asked if he would like to go; that Colwell had not handled any mortgages or loans to Duke Brothers; that Colwell attended the party after his normal working hours, driving his wife's car; that no business was transacted there or at the dinner; that other banking institutions were represented at the party and dinner and that Colwell was under no compulsion to attend. With reference to Colwell's visit to the Dean residence the depositions disclose that Dean was Colwell's immediate superior at the bank; that Dean 'invited' him and three or four other bank employees to come to his home to see his new pool table; that the Dean party was purely social and no business was transacted; that he arrived at the Dean home about 10:00 or 10:15 p.m. and remained about 45 minutes; that while there he first played pool with Dean's wife and thereafter briefly played cards; that his route to and from the Dean residence was not dictated by the bank nor had Dean 'requested' or ordered him to attend the social visit.

Based upon the foregoing deposition testimony and the allegations contained in plaintiffs' amended complaint must this Court hold that as a Matter of law Colwell was not within the scope of his employment and thus affirm the trial court or must we hold that the issue is jury submissible and reverse? In most instances the question of whether one who drives his own car and who after normal working hours negligently injures a third party is acting within the scope of his employment is a question which should be left to the jury. 10B Blashfield's Cyclopedia of Automobile Law and Practice (perm. ed.), § 6637, p. 286. But where the facts are not in dispute and where no conflicting inferences may reasonably be drawn therefrom, the determination of whether the employee was acting within the scope of his employment is for the court. Blashfield, Supra, p. 320. In Ten Brink v. Mokma, 13 Mich.App. 85, 87, 163 N.W.2d 687, 688 (1968), our Court adopted the following test for determining whether an employee was acting within the scope of employment:

"If the work of the employer creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work is merely incidental to the travel, and the trip would not have been made but for the private purpose of the servant, he is out of the scope of his employment in making it."

See also Long v. Curtis Publishing Co., 295 Mich. 494, 295 N.W. 239 (1940); Kester v. Mattis, Inc., 44 Mich.App. 22, 204 N.W.2d 741 (1972). ⁵

juxtaposing the prescribed test to the deposition facts we adjudge that no error was committed in the ruling of the trial court. Whether Colwell was or was not serving some purpose of the bank while he attended the happy hour receiption and dinner is not determinative of our decision. Assuming, arguendo, that Colwell was then within the scope of his meployment, the relevant question is whether he continued in such posture while attending the social gathering at Dean's home. We conclude he did not and further opine that no permissible inference to the effect that he might have reasonably been serving his employer may be drawn from the testimony. The occasion was purely social. The invitation was to see Dean's new pool table and play pool. While present, Colwell played pool and cards. Plaintiff argues that the deposition testimony also included an acknowledgment by Dean that his assigned duties included attending social functions and the social function at his home created a good relationship which could result in bank employees, including Colwell, to render a better work performance for the bank. This deposition-contained fact, plaintiff contends, creates a permissible inference sufficiently strong to take the question of Respondeat superior to the jury. We respectfully disagree. The recitation of Dean's testimony is not accurate. ⁶ More to the point, we believe the reasoning stretches too thin. Generally, a person's social friends are also some of those with whom he customarily works including his immediate superior. To hold that a purely social party held at off-duty hours at the boss's home is, by reason of the improved good relationship thereby created between employee and employer, grounds for a jury determination of whether the employee was within the scope of his employment, is tantamount to making the employer liable for any negligent act of his employee occurring either going to or coming from an off hours social gathering of its employees. The law has not yet moved so far. While we find no case in Michigan directly on point, other jurisdictions have rejected plaintiff's position.

On facts closely parallel, but less favorable to defendant, than those present here Brehm v....