Hinman v. Westinghouse Electric Co.

At the time of the accident, Herman was employed by Westinghouse as an elevator constructor’s helper and was returning home from work from a job site. He had been working for Westinghouse for about four months. His work was assigned from the Westinghouse office. He did not go to the office before or after work but instead went from home directly to the job site and after work returned home from the job site. The particular job on which Herman was working was not completed at the time of the accident, and he would ordinarily return to the job site until the job was completed or he was told not to return.

The union contracts under which Herman worked provided for the payment of “carfare” and travel time in certain circumstances depending on the location of the job site in relation to the Los Angeles City Hall. As to this job, which was 15 to 20 miles from the city hall, Herman received an hour and a half per day as his round-trip travel time and $1.30 for his travel expense. The employer had no control over the method or route of transportation used by Herman.

The trial judge refused instructions that Herman was acting within the scope of his employment at the time of the accident and instead instructed the jury that whether he was acting within the scope of his employment depended upon a number of factors including among others, “whether his conduct was authorized by his employer, either expressly or impliedly; the nature of the employment, its object and the duties imposed thereby; whether the employee was acting in his discharge thereof; whether his conduct occurred during the performance of services for the benefit of the employer, either directly or indirectly, or of himself; whether his conduct, even though not expressly or impliedly authorized, was an incidental event connected with his assigned work; and many other things besides the time and place of performance of his duties as an employee.”

After the jury returned its verdict in favor of Westinghouse nine to three, the trial judge inquired, as “a matter of information only,” if the jury found negligence on the part of Herman. The foreman responded in the affirmative to that question and also the further question as to whether the jury’s decision related to scope of employment.

Although earlier authorities sought to justify the respondeat superior doctrine on such theories as “control” by the master of the servant, the master’s “privilege” in being permitted to employ another, the third party’s innocence in comparison to the master’s selection of the servant, or the master’s “deep pocket” to pay for the loss, “the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are

placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.” (Prosser, Law of Torts (3d ed. 1964) p. 471; fns. omitted.) Dean Prosser’s citations suggest that the “modern” justification has been accepted for more than 50 years.

Another leading authority also points out that the modern and proper basis of vicarious liability of the master is not his control or fault but the risks incident to his enterprise. “We are not here looking for the master’s fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he has undertaken. . . . Further, we are not looking for that which can and should reasonably be avoided, but with the more or less inevitable toll of a lawful enterprise.” (2 Harper and James, The Law of Torts (1956) pp. 1376-1377; see also United States v. Romitti (9th Cir. 1966) 363 F.2d 662 , 666 (applying California law).)

Similarly, California cases have long recognized that the employer’s responsibility for the torts of his employee extends beyond his actual or possible control of the servant to injuries which are “risks of the enterprise.” (Carr v. Wm. C. Crowell Co., 28 Cal.2d 652 , 655-656 [ 171 P.2d 5 ]; George v. Bekins Van & Storage Co., 33 Cal.2d 834 , 843 [ 205 P.2d 1037 ]; Fields v. Sanders, 29 Cal.2d 834 , 841 [ 180 P.2d 684 , 172 A.L.R. 525 ].) Chief Justice Traynor has pointed out: “The principal justification for the application of the doctrine of respondeat superior in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business.” (Johnston v. Long, 30 Cal.2d 54 , 64 [ 181 P.2d 645 ].) Thus, it must be deemed settled in California that in accordance with the principal justification for the doctrine, the employer’s liability extends to the risks inherent in or created by the enterprise.

The cases which have considered recovery against the master for accidents occurring within the scope and during the period of employment have established a general rule of liability with a few exceptions for cases where the employee has substantially deviated from his duties for personal purposes. (See 1 Witkin, Summary of Cal. Law (7th ed. 1960) pp. 446-448.) In the instant case, the employee was on company time and was engaged in the very conduct contemplated by the employer.

Liability of the employer may not be avoided on the basis of the “going and coming” rule. Under the “going and coming” rule, an employee going to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts. (1 Witkin, Summary of Cal. Law (7th ed. 1960) pp. 448-449.) The “going and coming” rule is sometimes ascribed to the theory that the employment relationship is “suspended” from the time the employee leaves until he returns (Harvey v. D & L Constr. Co., 251 Cal.App.2d 48 , 51 [ 59 Cal.Rptr. 255 ]), or that in commuting he is not rendering service to his employer (Robinson v. George, 16 Cal.2d 238 , 244 [ 105 P.2d 914 ]). Nevertheless, there are exceptions to the rule.

Thus in Harvey v. D & L Constr. Co., supra, 251 Cal.App.2d 48 , 51, the court reversed a nonsuit for the employer where it was shown that because of the remote site of the construction project, the employer had asked the employee to recruit other employees, one such employee was riding at the time of the accident, and the employer was furnishing the gas for the trip to the employee’s home. Similarly, in Richards v. Metropolitan Life Ins. Co., 19 Cal.2d 236 [ 120 P.2d 650 ], liability of the employer to an innocent third party was recognized from the time that an outside salesman left his home to see clients outside the office, and where his work involved both office work and field work; it was held immaterial whether he was proceeding to his office or to see some of his customers elsewhere. In Boynton v. McKales, 139 Cal.App.2d 111 [ 294 P.2d 733 ], the employer was held liable where the injury occurred while the employee was driving home from a company banquet.

Liability of an employer to an innocent third party for an accident occurring on the way to work was upheld in Breland v. Traylor Engineering, etc. Co., 52 Cal.App.2d 415 , 423-425 [ 126 P.2d 455 ], where the employer had sent the employee to California from Pennsylvania to help construct a kiln, traveling and subsistence allowances were paid by the employer while the employee was traveling to California, and the employer paid five cents a mile for use of the car from the employee’s temporary home to the job site. The court reasoned that under this showing it could be inferred that the employer “impliedly agreed” that the employee should be deemed to be acting in the course and scope of his employment while going to and coming from work. (52 Cal.App.2d at p. 425.)

In Kobe v. Industrial Acc. Com., 35 Cal.2d 33 , 35 [ 215 P.2d 736 ], a case arising under the workmen’s compensation law, the court reasoned that, although the employment relationship is ordinarily suspended when the employee is going or coming, “the employer may agree, either expressly or impliedly, that the relationship shall continue during the period