Stanfield v. Laccoarce

• Citation: 588 P.2d 1271,284 Or. 651
• Decision Date: 27 December 1978
• Docket Number: No. 76-0111,76-0111
• Parties: William STANFIELD, Respondent, v. Roy A. LACCOARCE, Defendant, James T. Laccoarce and Pauline Laccoarce, Appellants. ; SC 25476.
• Court: Supreme Court of Oregon

Page 1271

588 P.2d 1271

284 Or. 651

William STANFIELD, Respondent, v. Roy A. LACCOARCE, Defendant, James T. Laccoarce and Pauline Laccoarce, Appellants.

No. 76-0111; SC 25476.

Supreme Court of Oregon.

Argued and Submitted Nov. 3, 1978, at Eugene.

Decided Dec. 27, 1978.

[284 Or. 652-B] Robert L. Cowling, Medford, argued the cause for appellants. With him on the briefs were Patrick Ford, and Ford & Cowling, Medford.

James H. Spence, Roseburg, argued the cause for respondent. With him on the brief were Verdon L. Hockett, Jr., and Spence, O'Neal & Banta, Roseburg.

Before DENECKE, C. J., and HOLMAN, TONGUE, HOWELL and LINDE, JJ.

HOWELL, Justice.

Plaintiff brought this action for damages arising out of an accident in which the defendant Roy Laccoarce's truck collided with an automobile in which plaintiff was a passenger. The jury returned a verdict for plaintiff, and defendants appeal.

The accident occurred on November 26, 1975, at the crest of Camas Mountain in Douglas County. Roy Laccoarce was returning from a trip to Roseburg to his home in Camas Valley. The time was late afternoon, it was dark, and light rain was falling. Roy had passed two or three other vehicles going up the grade, and his speed was estimated at 70 miles per hour. Despite the fact that his view was obstructed by a curve, Roy attempted to pass another vehicle 800 to 1,000 feet from the scene of the accident. There was evidence that his vehicle began sliding on the curve, entered the opposite lane, and struck the vehicle in which plaintiff was riding. Roy contended that he was not travelling in excess of 55 miles per hour and that the accident on the curve occurred in his own lane of travel.

There was conflicting evidence with respect to the primary purpose of Roy's trip to Roseburg, but there was evidence from which the jury could reasonably conclude that at least one purpose was to pick up supplies for various businesses owned by Roy's parents in Camas Valley.

Plaintiff sued Roy Laccoarce and his parents, James and Pauline Laccoarce, contending that Roy was negligent and that at the time of the accident Roy was acting as an employee of his parents. On appeal, defendants raise twelve assignments of error, many of which involve the same legal issues. Because the jury returned a verdict for plaintiff, any conflicts in the evidence must be resolved in plaintiff's favor. Krause v. Eugene Dodge, Inc., 265 Or. 486, 509 P.2d 1199 (1973).

Defendants ¹ first contend that the trial court erred in submitting the case to the jury because there was insufficient evidence to show that Roy was acting as his parents' employee at the time of the accident. From the evidence presented at trial, the jury could reasonably have found the following facts to be true.

The Laccoarces ran a grocery store, cafe, and ambulance service in Camas Valley. They also owned a service station that was operated by one Hiram Cunningham for a percentage. Mrs. Laccoarce testified that Roy worked at the grocery store and cafe as a "part time cook and part time was available if I needed him and he's helped stock on the heavier stuff and unloaded and occasionally did chores in town."

After arriving in Roseburg on the date of the accident, Roy picked up an order from a grocery wholesaler and an order from a candy company for his parents' store. He also picked up some automotive parts for his parents' service station. He went to the bank where his parents maintained their checking account, made a deposit for his parents, and picked up change for them.

Roy made a number of inconsistent statements concerning the principal purpose of his trip to Roseburg. Initially, he claimed the trip was "business" related. He subsequently changed his story, claiming the trip was made primarily to see a friend about a trip to San Francisco. There was evidence that Roy was licensed to drive for occupational purposes only at the time of the accident.

Under the doctrine of respondeat superior, an employer is liable for the torts of his employee when the employee is acting within the scope of his employment. United Pac. Ins. v. Truck Ins. Exch., 273 Or. 283, 541 P.2d 448 (1975). In deciding whether an employee was acting within the scope of his employment, the factors to be considered are whether the act in question is of a kind the employee was hired to perform, whether the act occurred substantially within the authorized limits of time and space, and whether the employee was motivated, at least in part, by a purpose to serve the employer. Gossett v. Simonson, 243 Or. 16, 24, 411 P.2d 277 (1966), Quoting Restatement (Second) of Agency § 228 (1958). The scope of employment limitation is designed to ensure that employers will be held liable only for harm resulting from activity from which they were receiving the benefit. "(T)he ultimate question is whether or not it is just that the loss resulting from the servant's acts should be considered as one of the normal risks to be borne by the business in which the servant is employed." Restatement (Second) of Agency § 229, Comment a (1958). Consequently, we have held that the question of whether or not an employee has acted within the scope of his employment at any given time is normally a question for the jury, except in cases where only one reasonable conclusion can be drawn from the facts. Gossett v. Simonson, supra; Kowaleski v. Kowaleski, 235 Or. 454, 385 P.2d 611 (1963). This is not a case in which only one reasonable conclusion can be drawn from the facts.

Mrs. Laccoarce herself testified that Roy worked as a "part time cook and part time was available if I needed him * * * And occasionally did chores in town." (Emphasis added.) No contention is made that the route Roy travelled in returning to Camas Valley was an unauthorized one. The jury could therefore have concluded that the trip Roy made to Roseburg was "of a kind the employee was hired to perform" and that he was operating "within the authorized limits of time and space" at the time the accident occurred.

Defendants argue that there was no evidence that they had any " right to control" the conduct of Roy at the time of the accident. ² We have recognized, particularly in automobile cases, that the "right to control" test is often of no assistance in deciding whether an employee is acting within the scope of his employment. Kowaleski v. Kowaleski, supra at 459, 385 P.2d 611. No employer can "control" the manner in which an employee drives or other details of his trip. In reality, the question of whether the employer had a "right to control" the employee is merely another way of asking whether the activity in question occurred within the authorized limits of time and space, so that it is fair to make the employer vicariously liable for the conduct of the employee. Viewed in this manner, there was evidence, as noted above, from which the jury could conclude that defendants had a "right to control" Roy's trip to Roseburg.

Defendants' principal contention is that the primary purpose of Roy's trip was personal and that he was not motivated by a desire to serve his parents. We think there was ample evidence from which the jury could have reached the opposite conclusion. Roy made a number of statements, both in his deposition and to other Camas Valley residents shortly after the accident, that the purpose of his trip was related to his parents' "business." Additionally, the jury was entitled to consider the evidence that Roy was licensed to drive for job-related purposes only at the time of the accident.

Defendants argue that the trial court should not have considered Roy's out-of-court statements in deciding whether there was sufficient evidence to present a jury question as to the purpose of Roy's trip because those statements were hearsay, and therefore should not have been admitted in evidence. In Elam v. Soares 282 Or. 93, 577 P.2d 1336 (1978), we defined hearsay as

"* * * testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." 282 Or. at 97, 577 P.2d at 1338, Quoting McCormick on Evidence 584 (2d ed. 1972).

It is clear that the statements to which defendants object in the present case were not excludable as hearsay, as they were not offered "to show the truth of the matter asserted therein." Rather, they were offered to prove Roy's state of mind, which was a fact in issue under the "scope of employment" test. Therefore, the court did not err in admitting the testimony, and the testimony could be considered in determining whether Roy made his trip to Roseburg for job-related purposes.

On the basis of the evidence reviewed above, we conclude that the court did not err in denying defendants' motion for a directed verdict. This is not a case in which the facts are undisputed and only one reasonable inference can be drawn from the facts. Cf., Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 506 P.2d 486 (1973) (facts clearly showed that employee was returning home from work and was no longer on the job). The trial court correctly denied defendants' motion for a directed verdict.

Defendants next contend that the trial court erred in instructing the jury that it could find Roy Laccoarce to be negligent if it determined that he was in violation of certain traffic safety statutes at the time of the accident. ³ Defendants claim that under our holding in Barnum v. Williams, 264 Or. 71, 504 P.2d 122 (1972), the trial court should have instructed that violation of the statutes is not negligence as a matter of law if the driver was acting as a reasonable person under the circumstances. We find this argument untenable.

The rule in Barnum is that a party is guilty of negligence as a matter of law if he violates a motor vehicle statute and if no evidence is presented that he was acting reasonably...