McIvor v. Savage

The plaintiff, Ora Jean McIvor, brought this action to recover damages for injuries sustained as a result of a collision between an automobile driven by the defendant Tollefsen, in which she was riding as a “passenger for a consideration” and an automobile driven by the defendant Savage. The plaintiff is the appellant herein, and the defendants are respondents. In her complaint, the plaintiff charged each of the defendants with negligence proximately contributing to the aforesaid collision. The defend

Pertinent parts of section 3601 provide: “Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is . . . the exclusive remedy for injury ... of an employee against the employer or against any other employee of the employer acting within the scope of his employment, . .” except that the person injured has a right to bring an action against a co-employee where the injury is caused by the willful and unprovoked physical act of aggression of the coemployee, the latter’s intoxication, or an act by him which evinces a reckless disregard for the safety of the injured person.

The defendants moved for a summary judgment; contended that there was no triable issue of fact with respect to their special defense; and supported the same by an affidavit of the attorney for one defendant and by a declaration under penalty of perjury of the attorney for the other defendant in which each of them stated that all of the facts set forth therein were within his personal knowledge, and if called as a witness he would testify thereto under oath. From the affidavit and declaration aforesaid it may be concluded that there is no triable issue as to the following facts: that the accident in question occurred on the parking lot of Beckman Instruments Company; that the plaintiff and defendants then were employees of that company; that all of them were leaving work but- had not left the parking area, which was under the control of their employer; that the plaintiff was in an automobile driven by the defendant Tollefsen who then “had an accident” with the defendant Savage; that at the time her deposition was taken the plaintiff testified that she had been paid workmen’s compensation benefits as the result of the injuries sustained by her in the accident; and that in this deposition she had not testified that her injuries were caused by the willful and unprovoked act of the defendants, by their intoxication, or by any act on their part evincing a reckless disregard for her safety.

A defendant’s motion for summary judgment should be granted where it is supported by an affidavit establishing a complete defense to the action, and the plaintiff’s affidavit in reply does not show a triable issue of fact with respect to that defense. (Security First Nat. Bank v. Ross, 214 Cal.App.2d 424 , 432 [ 29 Cal.Rptr. 538 ]; Keylon v. Kelly, 188 Cal.App.2d 490 , 493 [ 10 Cal.Rptr. 549 ].) On the other hand, if the affidavit in support of the defendant’s motion does not state facts establishing every element of his defense, the motion must be denied. (Hardy v. Hardy, 23 Cal.2d 244 , 245 [ 143 P.2d 701 ]; Murphy v. Kelly, 137 Cal.App.2d 21 , 31 [ 289 P.2d 565 ].)

Initially it should be observed that the defendants’ affidavit and declaration were wholly inadequate to establish that the plaintiff’s action was not within the exceptions noted within section 3601, viz., an action for injuries caused by a coemployee’s willful and unprovoked physical act of aggression, his intoxication, or his reckless disregard for the safety of the injured employee. The fact that the plaintiff, in her deposition, did not testify to facts which would bring her case within the noted exceptions does not establish their nonexistence.

However, the issues on appeal present questions which should be determined by this court preliminary to a further consideration of the defendants’ motions or a trial of the case.

The plaintiff’s counteraffidavit stated, in substance, that she and the defendants, as employees of Beckman Instruments Company, went off duty at 3:30 p.m.; that all three of them then walked to the company’s parking lot; that the two defendants boarded their respective automobiles, that she entered the automobile of the defendant Tollefsen, to be

The issue on appeal is whether the affidavits and declaration at hand present a triable issue of fact on the question whether the defendants, at the time of the subject accident, were acting within the scope of their employment by the Beckman Instruments Company.

The statement in the plaintiff’s affidavit that the parties were not acting in the “course or scope” of their employment “is no more than a mere conclusion of law, an expression of her personal opinion to which she could not competently testify” (Murphy v. Kelly, supra, 137 Cal.App.2d 21 , 28), and is not sufficient to raise a triable issue of fact.

The defendants contend that the uncontradicted evidence before the trial court established as a matter of law that, at the time of the accident, they were acting in the course of their employment; that the phrase “scope of his employment” as used in section 3601 is synonymous with the phrase “course of the employment” as used in section 3600 of the Labor Code, which prescribes the conditions precedent to recovery of workmen’s compensation; and that their motions for summary judgment properly were granted.

The plaintiff counters with the contention that the phrase “scope of his employment” embraces a more restricted area than the phrase “course of the employment”; that the affidavits and declaration before the trial court established the existence of a triable issue of fact on the question whether the defendants were acting within the scope of their employment when the accident occurred; and that the order granting their motions was error.

Section 3600 of the Labor Code provides, in substance, for the recovery of compensation by an employee from his employer for an injury “arising out of and in the course of the employment.” As used therein, the phrase “course of the employment” relates to the factors of time and place contemplated by the employment. (State Comp. Ins. Fund v. Industrial Acc. Com., 38 Cal.2d 659 , 661 [ 242 P.2d 311 ]; Scott v. Pacific Coast Borax Co., 140 Cal.App.2d 173 , 178 [ 249 P.2d 1039 ]; DeMirjian v. Ideal Heating Corp., 112 Cal.App.2d 251 , 253-254 [ 246 P.2d 51 ].) It now is the settled rule that an injury may be received in the course

The phrase “scope of his employment” is used in section 3601 to designate the sphere of activity encompassed within the provisions thereof which make the right to recover workmen’s compensation the exclusive remedy available to an injured employee for a compensable injury caused by the

Ordinarily the phrase “scope of his employment” is used to define the activity sphere of an employee whose conduct is authorized, or is an incident to conduct authorized (see Rest., Agency, § 229); is related to an application of the doctrine of respondeat superior; designates an area of employee conduct for which the employer is responsible; defies precise definition because it is a composite of many factors the significance of which vary with different circumstances (Loper v. Morrison, 23 Cal.2d 600 , 605-606 [ 145 P.2d 1 ]; Party v. Collins, 109 Cal.App. 94 , 96 [ 292 P. 979 ]); is not synonymous with the phrase “course of the employment” as used in the workmen’s compensation statute because it includes factors of limitation other than those of time and place of employment (see DeMirjian v. Ideal Heating Corp., supra, 112 Cal.App.2d 251 , 253-254; Porter v. South Penn. Oil Co., 125 W.Va. 361 [ 24 S.E.2d 330 ]); and engrosses a more limited field than that included within the phrase “arising out of and in the course of his employment” as used in the Workmen’s Compensation Act. (Pacific Emp. Ins. Co. v. Industrial Acc. Com., 26 Cal.2d 286 , 293 [ 158 P.2d 9 , 159 A.L.R. 313 ].)

A determination of the issue as to whether an employee was acting within the scope of his employment involves a consideration of many factors including, among others, whether his conduct was authorized by his employer, either expressly or impliedly (Curcic v. Nelson Display Co., 19 Cal.App.2d 46 , 53 [ 64 P.2d 1153 ]); the nature of the employment, its object and the duties imposed thereby; whether the employee was acting in the discharge thereof (Hiroshima v. Pacific Cas & Elec. Co., 18 Cal.App.2d 24 , 25 [ 63 P.2d 340 ]); whether his conduct occurred during the performance of services for the benefit of the employer, either directly or indirectly, or of himself, or of another person (Fields v. Sanders, 29 Cal.2d 834 , 838-839 [ 180 P.2d 684 , 172 A.L.R. 525 ] ; Kish v. California State Automobile Assn., 190 Cal. 246 , 249 [ 212 P. 27 ]); whether his conduct, even though not expressly or impliedly authorized, was an incidental event connected with his assigned work (Carr v. Wm. C. Crowell Co., 28 Cal.2d 652 , 654 [ 171 P.2d 5 ]; Tyson v. Romey, 88 Cal.App.2d 752 , 755 [ 199 P.2d 721 ]); and many other things besides the time and place of performance of his

Ordinarily the person going to or coming from work is not acting within the scope of his employment. (Robinson v. George, 16 Cal.2d 238 , 244 [ 105 P.2d 914 ].) However, an application of this general rule necessarily requires a precedent determination as to when and where his work begins or ends, and involves a consideration of the many factors heretofore considered. (Richards v. Metropolitan Life Ins. Co., 19 Cal.2d 236 , 241 [ 120 P.2d 650 ]; Tyson v. Romey, supra, 88 Cal.App.2d 752 , 755.)

The phrase “scope of his employment” is not used in section 3601 to characterize the injury sustained by an employee but rather to characterize the act which was the cause of such injury. On the other hand, the phrase “arising out of and in the course of the employment” is used in section 3600 to designate the type of injury for which compensation is paid. Thus, different code sections describe different events by different language.

No reason exists for concluding that the Legislature, when using the phrase “scope of his employment” in section 3601, intended to attribute to it the meaning carried by the phrases “course of the employment” or “arising out of and in the course of the employment” as used in section 3600.

The defendants’ contention to the contrary is based in a large measure upon the fact that the courts have used interchangeably the phrases “course of the employment,” “arising out of and in the course of the employment” and “scope of his employment.” (See Industrial Indem. Exch. v. Industrial Acc. Corn., 86 Cal.App.2d 202 , 203 [ 194 P.2d 552 ]; Auto Lite etc. Corp. v. Industrial Acc. Com., 77 Cal.App.2d 629 , 631 [ 176 P.2d 62 ].) However, where the occasion required it, the courts also have noted a legal distinction between these terms. (Pacific Emp. Ins. Co. v. Industrial Acc. Com., supra, 26 Cal.2d 286 , 293; DeMirjian v. Ideal Seating Corp., supra, 112 Cal.App.2d 251 , 253-254.) The meaning attributable to language used by a court in its opinion must be related to the subject matter under consideration. No significance can be attached to the interchangeable use of the aforesaid phrases as identifying references to a particular event.

In Adams v. American President Lines, 23 Cal.2d 681 , 685 [ 146 P.2d 1 ], the court determined that conduct resulting in injury that would have been classified as arising out of and in the course of employment under the California

In the instant case, it is readily apparent that the affidavit and declaration which the defendants filed in support of their motions, when reviewed in the light of the many factors that must be considered in determining the scope of employment issue, did not allege facts from which it may be concluded as a matter of law that they were not acting within the scope of their employment at the time the plaintiff was injured. The averments in these two documents establish only the occurrence of an accident while the defendants were leaving their employer’s parking lot on their way home from work. As heretofore noted, this is only one of the factors to be considered in determining whether they then were acting within the scope of their employment, as that term is used in section 3601. Furthermore, when the plaintiff alleged in her counteraffidavit that the duties of each defendant as an employee of the Beckman Instruments Company terminated at a time prior to the accident, a triable issue of fact was indicated.

The issues on this appeal do not admit of a determination whether unaverred facts supposedly attendant upon the instant accident might or might not establish that the defendants, in doing those things which resulted in injury to the plaintiff, were or were not acting within the scope of their employment. We make no decision with respect thereto. Nevertheless, probable facts disclosed by the pleadings, statements by the parties in their briefs, and the affidavits and declaration filed in connection with the subject motions, indicate a complex situation requiring a determination of the

Our conclusion is that section 3601 does not foreclose an action by an employee against a coemployee for injuries sustained by the former as a result of the negligent conduct of the latter merely because the injuries sustained were compensable under the Workmen’s Compensation Statute; the fact that such an injury arose out of and in the course of employment does not establish per se that the coemployee who inflicted that injury was acting within the scope of his employment; the phrase “scope of his employment’’ as used in that section to describe the nature of the act of the coemployee whose conduct caused such injury is not synonymous with the phrase “arising out of and in the course of

The plaintiff also contends that section 3601, as interpreted by the trial court, is unconstitutional. Our conclusion in the premises renders a consideration of this contention unnecessary.

The judgment is reversed.

Griffin, P. J., and Stone, J., concurred.