Wooley Trust v. DeBest Plumbing, Inc.

• Citation: 983 P.2d 834,133 Idaho 180
• Decision Date: 03 August 1999
• Docket Number: No. 24734.,24734.
• Parties: The RICHARD J. AND ESTHER E. WOOLEY TRUST, dated July 24, 1970, Richard J. Wooley, Trustee, d/b/a Phillippi Plaza Apartments, Plaintiffs-Appellants, v. DEBEST PLUMBING, INC., an Idaho corporation, Defendant-Respondent, and Dale Byers, Defendant.
• Court: United States State Supreme Court of Idaho

983 P.2d 834

133 Idaho 180

The RICHARD J. AND ESTHER E. WOOLEY TRUST, dated July 24, 1970, Richard J. Wooley, Trustee, d/b/a Phillippi Plaza Apartments, Plaintiffs-Appellants, v. DEBEST PLUMBING, INC., an Idaho corporation, Defendant-Respondent, and Dale Byers, Defendant.

No. 24734.

Supreme Court of Idaho, Boise, February 1999 Term.

August 3, 1999.

Hall, Farley, Oberrecht & Blanton, Boise, for appellants. Joshua S. Evett argued.

Tolman Law Office, Twin Falls, for respondent. Jennifer K. Brizee argued.

SCHROEDER, Justice.

This is an appeal from a judgment entered in district court following a jury trial. The plaintiff-appellant, Richard J. and Esther E. Wooley Trust, dated July 24, 1970, Richard J. Wooley, Trustee, d/b/a Phillippi Plaza Apartments (Phillippi Plaza), asserts that the district court erred in denying its motion for new trial and in granting DeBest Plumbing, Inc.'s (DeBest) motion for discretionary costs under Rule 54(d)(1)(D) of the Idaho Rules of Civil Procedure. One of the issues before the jury below was whether an employee of DeBest was acting within the scope of his employment while attempting to repair a water leak in an apartment at Phillippi Plaza. The jury concluded that the DeBest employee was not acting within the scope of his employment. The main question before this Court is whether a jury instruction given by the district court accurately defined the term "scope of employment."

I. BACKGROUND AND PRIOR PROCEEDINGS

Jason Garlock (Garlock) was a resident at the Phillippi Plaza Apartments. In late 1993, he approached the manager of Phillippi Plaza about a leaky pipe in his apartment. Since Phillippi Plaza's customary plumber no longer serviced the apartments, Garlock suggested that he might be able to get someone from DeBest (where he worked) to look at the leak quicker than the manager could. Garlock and the manager did not discuss the cost of the project, but the manager assumed that DeBest would bill her if it did the work.

Garlock asked a coworker from DeBest, Joe Carlton (Carlton), what would be involved in having someone from DeBest look at the leak. Garlock could not do the work himself because he was not a plumber. Carlton had been a DeBest employee for sixteen years, but he did not consider himself to be Garlock's supervisor. Nevertheless, Carlton told Garlock that if Garlock could find someone who would be willing to go out and look at the leak in the apartment, then he saw no problem. Garlock then approached Dale Byers (Byers) about repairing the leak. Carlton testified he did not order Byers to fix the leaky pipe.

Byers was a "field superintendent" for DeBest who worked mainly in the office, scheduling the crews and the service work. He was on call twenty-four hours a day. DeBest provided him with a company truck which DeBest maintained and provided gas.

Although at the relevant time period DeBest only serviced warranty work on projects the company had done in the past, the company would charge a fee to service work that was non-warranty. Normally when Byers did service work for an apartment complex, he left a bill. However, Byers testified that he never intended to bill for the work he was going to do for Garlock.

DeBest's working hours were 8:00 a.m. to 5:00 p.m. Byers left work after 5:00 p.m. on the night of the repair and drove to Phillippi Plaza. He did not speak with the apartment manager before attempting the repair. Garlock's wife indicated that Byers brought a blow torch and a ticket or invoice book into the apartment, but later admitted that she did not know what the clipboard was and had assumed it was such. Subsequent to Byers' repair work, a fire broke out in the apartment.

Phillippi Plaza sued DeBest and Byers, alleging that Byers caused the fire and was acting for DeBest at the time of the repair work. Default judgment was entered against Byers. The case was tried to jury which returned a verdict in favor of DeBest. Judgment was entered against Phillippi Plaza. DeBest filed a memorandum of costs. Phillippi Plaza moved for a new trial and also moved to disallow DeBest's memorandum of costs. The district court denied the motion for new trial and awarded costs to DeBest. Phillippi Plaza appealed, claiming error by the district court in denying the motion for new trial and awarding discretionary costs to DeBest.

II. STANDARD OF REVIEW

The standard of review when reviewing jury instructions on appeal requires [this Court] to determine whether the jury was properly and adequately instructed. Accordingly, [the Court] must review the instructions and ascertain whether the instructions, when considered as a whole, fairly and adequately present the issues and state the applicable law.

Brooks v. Gigray Ranches, Inc., 128 Idaho 72, 76, 910 P.2d 744, 748 (1996) (quoting Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 50, 830 P.2d 1185, 1188 (1992)). "When considering an appeal from a district court's ruling on a motion for new trial, this Court applies the abuse of discretion standard." Hughes v. State, Idaho Dep't of Law Enforcement, 129 Idaho 558, 561, 929 P.2d 120, 123 (1996).

III.

THE DISTRICT COURT'S INSTRUCTIONS DID NOT MISSTATE THE LAW.

Phillippi Plaza maintains that Jury Instruction No. 10 which was given to the jury was erroneous due to the inclusion of the second paragraph which uses the term "assigned." The jury instruction reads as follows:

If Dale Byers was acting within the scope of his employment at the time he was attempting to repair the water leak, then DeBest Plumbing would be liable for any damage caused by the negligence of Dale Byers.

An employee is acting within the scope of his employment when he is doing the work assigned by his employer, or is doing that which is proper, usual, and necessary to accomplish the assigned work, or is doing that which is customary in the particular trade or business to accomplish the assigned work.

An employee's conduct is within the scope of his employment if, but only if:

(a) the conduct is of the kind he is employed to perform; and

(b) the conduct occurs substantially within that period of the day during which the employer has the right to control the employee's conduct and within the general area or locality in which the employee is authorized to work; and

(c) the employee's purpose is, at least in part, to further his employer's business interests. If the employee acts from purely personal motives which are in no way connected with his employer's business interests, then the employee is not acting within the scope of his employment.

Phillippi Plaza Apartments has the burden of proving that when Dale Byers was attempting to repair the water leak, he was acting within the scope of his employment with DeBest Plumbing.

Phillippi Plaza contends that the second paragraph in the instruction conflicts with Idaho Jury Instruction (IDJI) No. 253, which reads in relevant part:

An agent is acting within the scope of his authority if he is engaged in the transaction of business which has been assigned to him by his principal, or if he is doing anything which may reasonably be said to have been contemplated as a part of his employment. It is not necessary that an act or failure to act must have been expressly authorized by [the] principal.

IDAHO JURY INSTRUCTIONS No. 253 (1982). Phillippi Plaza argues that Jury Instruction No. 10 required it to show that DeBest affirmatively assigned Byers to the job before he could be found to have acted within the scope of his employment, contrary to the last sentence of IDJI No. 253. Phillippi Plaza also maintains that Jury Instruction No. 10 omits the "disjunctive clause" that permits a jury to find that an agent acted within the scope of his employment if he was "doing anything which may reasonably have been said to have been contemplated as a part of his employment."

The language from the second paragraph in Jury Instruction No. 10 was quoted directly from section 7:10 of the Colorado Jury Instructions 3d. COLORADO JURY INSTRUCTIONS 3d § 7:10 (1988). Nevertheless, the Court must address whether the Colorado language included in the instruction misstates Idaho law.

Byers was a "servant" of the "master" DeBest in that Byers was an employee of DeBest, and as a consequence, DeBest was potentially subject to vicarious liability for Byers' torts. W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 70, at 501 (5th ed. 1984). DeBest's vicarious liability "extends to any and all tortious conduct of the servant which is within the `scope of the employment.'" Id. at 502. The question is, what is the definition of scope of employment?

PROSSER AND KEETON ON TORTS explains that scope of employment

refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.

Id.

RESTATEMENT (SECOND) OF AGENCY § 228, which resembles the third paragraph in Jury Instruction No. 10, states in relevant part:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

RESTATEMENT (SECOND) OF AGENCY § 228 (1958). Therefore, if the employee's purpose is purely personal, it does not matter that the employee is using the employer's tools or driving the employer's vehicle or some other activity that merely resembles his or her employment. The employee must be engaged in some type of work that is assigned to him or her in the general sense of doing something to serve the employer.

The Court of Appeals also explained this concept in Podolan v. Idaho Legal Aid...