Runyan v. Pickerd

• Decision Date: 20 October 1987
• Citation: 740 P.2d 209,86 Or.App. 542
• Parties: Grace RUNYAN, Appellant, v. Eugene PICKERD, Defendant, and Montgomery Ward & Co., Inc., a foreign corporation, Respondent. 84-10-937; CA A39810.
• Court: Oregon Court of Appeals

Page 209

740 P.2d 209

86 Or.App. 542

Grace RUNYAN, Appellant, v. Eugene PICKERD, Defendant and Montgomery Ward & Co., Inc., a foreign corporation, Respondent.

84-10-937; CA A39810.

Court of Appeals of Oregon.

Argued and Submitted May 7, 1987.

Decided July 29, 1987.

Reconsideration Denied Sept. 25, 1987.

Review Denied Oct. 20, 1987.

W. Eugene Hallman, Pendleton, argued the cause for appellant. With him on the briefs were William J. Storie, and Mautz, Hallman & DeVore, Pendleton.

Douglas E. Hojem, Pendleton, argued the cause and filed the brief for respondent.

Before JOSEPH, C.J., and RICHARDSON and WARREN, JJ.

JOSEPH, Chief Judge.

Plaintiff brought this action against Montgomery Ward (Ward) and Pickerd, the manager of Ward's Pendleton store, for injuries which she allegedly suffered as the result of Pickerd's negligence while he was driving his own automobile to the store on a Sunday morning. The basis for the claim against Ward was that Pickerd was acting within the course and scope of his employment and that Ward is therefore vicariously liable for his negligence. The trial court granted Ward's motion for summary judgment and entered a final judgment pursuant to ORCP 67B. Plaintiff appeals. We affirm.

We quote the material portions of the statement of facts in plaintiff's brief:

"[Pickerd's and Ward's] agreement when he was hired was that he would work five days a week, 40 hours a week, 8:30 to 5:30, and that he would get Saturday and Sunday off. The regional sales manager, Mr. Lambert, had insisted that his managers only work five days a week because that is all they got paid to do. Mr. Pickerd did not work weekends, although he had gone into the store on Saturday 'a couple of three times' during the first part of his employment with Montgomery Ward. Mrs. Pickerd could not remember her husband ever going into the store on a Sunday prior to the day of the accident.

"The accident in question occurred on October 23, 1983, a Sunday. The store was closed on Sunday. Mr. Pickerd planned to go down to the store and 'be back in a little bit.' Mrs. Pickerd understood that the inventory had been taken earlier in the week and her husband was going to go down to check on something while nobody was around, perhaps in the automotive department.

"Two separate reasons were advanced by Mr. Pickerd for the trip. In his first deposition, he explained that he had gone down to see if the teletype had gone off. He explained his concern as follows:

" 'I had a new girl that I was a little bit concerned about whether or not she run the thing right. On a couple of occasions it hadn't went off.

" 'It wasn't anything I had to do, just an option that I decided to do.'

"In his second deposition he qualified his answer and stated that the teletype problem may have been one of the purposes for his trip to the store.

"In Mr. Pickerd's second deposition he offered a second reason for the trip, that being inventory. He based this testimony on what his wife had said as to his reasons for going down to the store. The general practice is to take the inventory when the store is open. The semi-annual inventory was due to be taken in another week. There is a perpetual tire inventory taken at the Montgomery Ward store. It is usually done on Saturday and put on the teletype to be picked up by [a central] computer. If the inventory was not completed on Saturday, it would not show up [on the computer]. Then what would show up would be 'a bunch of zeroes.' When that happens sometimes [the computer center] calls the store directly, and if it happens two or three times in a row from one individual store, the district sales manager is notified.

"In his affidavit Mr. Pickerd further elaborated. He stated that he stopped by the store to check on a tire inventory which had been worked on during the prior week. He wanted to attend to the inventory before Monday as it would make the work go easier on Monday." ¹ (Footnote omitted.)

The focal dispute is whether, as a matter of law, Pickerd's driving to the store at the time of the accident was subject to the general rule stated in Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 539, 506 P.2d 486 (1973), "that an employee going to or from his work is not in the course of his employment at that time." As the court noted in Heide/Parker, there are many exceptions to the rule. Plaintiff argues, first, that Pickerd's negligence did not occur during a trip to which the rule applies, because it was not undertaken for the purpose of ordinary "commuting." Heide/Parker v. T.C.I. Incorporated, supra, 264 Or. at 541, 506 P.2d 486; Gossett v. Simonson, 243 Or. 16, 20, 411 P.2d 277 (1966). She contends, second, that the journey comes within the "special errand" exception to the rule. Although plaintiff maintains that those are alternative arguments, we perceive little difference between them as they apply to these facts. Their common premise is that Pickerd was outside the rule and within the exception, because he was driving to the store at a time when he was not required by his employer to be there and because he was going there to attend to matters which he perceived as being too pressing to await usual work hours.

The line between the rule and its exceptions is not always sharp. In Wilson v. Steel Tank & Pipe Co., 152 Or. 386, 52 P.2d 1120 (1936), for example, the court held that the defendant's employe could be found to have been acting within the scope of his employment while returning to Portland from an evening business trip to Vancouver, Washington, where he had gone at the direction of a superior officer. The employe lived and worked in Portland. However, the court observed that the employe "went from Portland to Vancouver on a mission for his company" and "it was just as much a part of his duty to return to Portland, which he was doing when the accident happened, as it was in going from Portland to Vancouver. * * * It could not be expected that [the employe] would remain at Vancouver and decimate [sic ] the citizenship of Oregon." 152 Or. at 395, 52 P.2d 1120. It was at least arguable in Wilson that the employe was doing nothing more than driving home after the conclusion of his work assignment; however, unlike here, that employe was not traveling between his usual place of work and his home, because the work he was performing before the accident was at a location other than his normal one. In Heide/Parker v. T.C.I. Incorporated, supra, the court said that the employe in Wilson "was more on a 'special errand' type of business for his company than * * * going to or from work." 264 Or. at 541, 506 P.2d 486.

In Calif. Cas. Ins. v. David Douglas School Dist., 71 Or.App. 549, 693 P.2d 54, on reconsideration 74 Or.App. 270, 702 P.2d 1115, rev. den. 300 Or. 249, 710 P.2d 146 (1985), we concluded that a school vice-principal was acting within the course of his employment when he was involved in an accident while driving to the school to supervise an evening social event. However, we noted in our opinion on reconsideration:

"[The vice-principal] was not compensated for his regular daily commuting to school. Under his arrangement with the district for evening supervision, he was entitled to be compensated either for his dinner eaten near school or for his mileage to and from school." 74 Or.App. at 273 n. 5, 702 P.2d 1115.

See I-L Logging Co. v. Mfgr. & Whlse. Ind. Exc., 202 Or. 277, 273 P.2d 212, 275 P.2d 226 (1954) (stating general exception to going and coming rule where employe reimbursed for travel expenses or paid extra compensation for travel time); see also Heide/Parker v. T.C.I. Incorporated, supra, 264 Or. at 537, 506 P.2d 486; Larkins v. Utah Copper Co., 169 Or. 499, 127 P.2d 354 (19...