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VIII.Supp.B. Supplemental Cases and Materials
  • 1 Konradi v. United States

    While driving to work, defendant’s employee—a rural mailman—strikes the car of the plaintiff and kills him.

    This case contemplates whether an employee can be within the scope of his employment while commuting, and under what particular circumstances. The court also uses an alternative definition of “scope of employment”, by considering to what extent employer liability would create beneficial (safer) changes in employee activity.

    1
    919 F.2d 1207
    2
    Gail D. KONRADI, Personal Representative of the Estate of Glenn J. Konradi, Plaintiff-Appellant,
    v.
    UNITED STATES of America and Robert E. Farringer, Defendants-Appellees.
    3
    No. 89-3532.
    4
    United States Court of Appeals,
    Seventh Circuit.
    5
    Argued Sept. 18, 1990.
    Decided Nov. 29, 1990.
    6

    [919 F.2d 1208] Thomas A. Withrow, David J. Bodle, and Scott S. Morrisson, Henderson, Daily, Withrow & Devoe, Indianapolis, Ind., and Richard K. Levi, Earnest, Foster, Eder, Levi & Northam, Rushville, Ind., for plaintiff-appellant.

    7

    Gerald A. Coraz, Asst. U.S. Atty., Deborah J. Daniels, U.S. Atty., Office of the U.S. Atty., John S. Langan, Davis, Davis & Langan, Indianapolis, Ind., and E. Edward Dunsmore, Knightstown, Ind., for defendants-appellees.

    8

    Before POSNER, RIPPLE and MANION, Circuit Judges.

    9
    POSNER, Circuit Judge.
    10

    While driving to work early one morning Robert Farringer, a rural mailman, struck a car driven by the plaintiff's decedent, Glenn Konradi, killing him. The suit is against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq., with a pendent-party claim under state law against Farringer. The basis of both claims is that Farringer's negligence in failing to yield the right of way to Konradi at an intersection was the cause of the accident. The district judge dismissed the suit on the government's motion for summary judgment. He ruled that the accident had not occurred within the scope of Farringer's employment by the Postal Service, which let off the Service; he then relinquished jurisdiction over the pendent party claim.

    11

    The parties agree that the question whether the accident occurred within the scope of Farringer's employment is governed [919 F.2d 1209] by Indiana law, 28 U.S.C. Sec. 1346(b); Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), that under Indiana law it is a question of fact, Gibbs v. Miller, 152 Ind.App. 326, 329, 283 N.E.2d 592, 594 (1972), and therefore that the judge was right to dismiss the case on summary judgment only if no reasonable jury, presented with the evidence that was before the judge when he ruled, could have answered the question in the plaintiff's favor. One could quarrel with "therefore," since whether a question is one of fact or of law has been held to fall on the procedure side of the substance/procedure divide that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), established. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Nunez v. Superior Oil Co., 572 F.2d 1119, 1125 (5th Cir.1978); Deland v. Old Republic Life Ins. Co., 758 F.2d 1331, 1335 (9th Cir.1985). Although the present case is not a diversity case, Erie was an interpretation of the Rules of Decision Act, 28 U.S.C. Sec. 1652, and its principles apply to any case in federal court in which state law supplies the rule of decision, Morgan v. South Bend Community School Corp., 797 F.2d 471, 474 (7th Cir.1986); Hernas v. City of Hickory Hills, 507 F.Supp. 103, 105 (N.D.Ill.1981); Wright, Miller & Cooper, Federal Practice and Procedure Sec. 4515 (1982), as it does here by virtue of 28 U.S.C. Sec. 1346(b). Still, circumstances alter cases--or at least may. Byrd and the cases following it rely heavily on the Seventh Amendment, which has no application to the Federal Tort Claims Act, for the proposition that federal law determines when a question is factual, and therefore a jury issue, in a case tried in a federal court; the case for applying federal law to the law-fact issue in this case is therefore weakened. But so is the case for applying state law to the issue. Congress has given the federal courts exclusive jurisdiction over tort claims against the federal government, incorporating local law for the convenience of the federal government rather than to vindicate state policies--though on the other hand the states do have an interest in conduct of federal employees that injures the state's citizens.

    12

    All this is as academic as it is interesting. No party argues in this case that federal law rather than state law should determine whether scope of employment is to be treated as a legal or as a factual question--perhaps believing, plausibly enough, that the question would be decided the same way under either law. Without further ado, therefore, we can turn to the merits.

    13

    The general rule is that an employee is not within the scope of his employment when commuting to or from his job. As the Supreme Court of Indiana put it the last time it addressed the issue, more than three decades ago, "an employee on his way to work is normally not in the employment of the corporation." Biel, Inc. v. Kirsch, 240 Ind. 69, 73, 161 N.E.2d 617, 618 (1959) (per curiam). The rub is "normally," and though omitted in the statement of the rule in Pursley v. Ford Motor Co., 462 N.E.2d 247, 249 (Ind.App.1984), this weasel word is definitely required for the sake of accuracy. In State v. Gibbs, 166 Ind.App. 387, 336 N.E.2d 703 (1975), the employer furnished the employee with a car for use on the job but also allowed him to take it home at night. The accident occurred while he was driving home, and the employer was held liable. In Gibbs v. Miller, supra, the employer was held liable for an accident that occurred when its traveling salesman, who used his own car to make his rounds, was driving home for lunch from an appointment with a customer; he had other appointments scheduled for that afternoon. On the other hand, in City of Elkhart v. Jackson, 104 Ind.App. 136, 10 N.E.2d 418 (1937), which also involved an employee driving the company car at lunch time--this time he was returning to work after lunch when the accident occurred--the accident was held to be outside the scope of employment. Biel, Inc. v. Kirsch, supra, was another company-car case, and again the accident (which occurred while the employee was driving the car to work one morning) was held to be outside the scope of employment--but the employee happened also to be the employer's owner, [919 F.2d 1210] and, it seems, was using the car for her personal convenience rather than on company business. In City of Crawfordsville v. Michael, 479 N.E.2d 102 (Ind.App.1985), the employee was using the company car (actually truck) for personal business on his day off when the accident occurred; he too was held not to have been acting within the scope of his employment.

    14

    It is impossible to find the pattern in this carpet without a conception of what the law is trying to accomplish by making an employer liable for the torts of his employees committed within the scope of their employment and by excluding commuting from that scope--"normally." The Indiana decisions are few and not articulate on these issues, and although there are plenty of cases in other states, they use a similar approach and are similarly reticent about the considerations that animate their decisions. Annot., Employer's Liability for Negligence of Employee in Driving His Own Car, 52 A.L.R.2d 287, 303, 311 (1957); Annot., Employer's Liability for Employee's Negligence in Operating Employer's Car in Going to or from Work or Meals, 52 A.L.R.2d 350, 354, 362-63 (1957). There is however a rich scholarly literature on vicarious liability, specifically of employers, from which clues can be gleaned. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harv.L.Rev. 563 (1988), is particularly helpful; we have relied on it previously, in an opinion by Judge Manion, Wilson v. Chicago, Milwaukee, St. Paul & Pac. R.R., 841 F.2d 1347, 1352, 1356 n. 2 (7th Cir.1988), to help decide a scope of employment issue.

    15

    Often an employer can reduce the number of accidents caused by his employees not by being more careful--he may already be using as much care in hiring, supervising, monitoring, etc. his employees as can reasonably be demanded--but by altering the nature or extent of his operations: in a word by altering not his care but his activity. This possibility is a consideration in deciding whether to impose strict liability generally. Anderson v. Marathon Petroleum Co., 801 F.2d 936, 939 (7th Cir.1986); Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 652 (7th Cir.1986); Shavell, Strict Liability versus Negligence, 9 J. Legal Stud. 1 (1980). The liability of an employer for torts committed by its employees--without any fault on his part--when they are acting within the scope of their employment, the liability that the law calls "respondeat superior," is a form of strict liability. It neither requires the plaintiff to prove fault on the part of the employer nor allows the employer to exonerate himself by proving his freedom from fault. The focus shifts from changes in care to changes in activity. For example, instead of dispatching its salesmen in cars from a central location, causing them to drive a lot and thus increasing the number of traffic accidents, a firm could open branch offices closer to its customers and have the salesmen work out of those offices. The amount of driving would be less (an activity change) and with it the number of accidents. Firms will consider these tradeoffs if they are liable for the torts of their employees committed within the scope of their employment, even if the employer was not negligent in hiring or training or monitoring or supervising or deciding not to fire the employee who committed the tort. This liability also discourages employers from hiring judgment-proof employees, which they might otherwise have an incentive to do because a judgment-proof employee, by definition, does not have to be compensated (in the form of a higher wage) for running the risk of being sued for a tort that he commits on his employer's behalf. He runs no such risk; he is not worth suing.

    16

    If it is true that one objective of the doctrine of respondeat superior is to give employers an incentive to consider changes in the nature or level of their activities, then "scope of employment" can be functionally defined by reference to the likelihood that liability would induce beneficial changes in activity. It becomes apparent for example that the employer should not be made liable for a tort committed by the employee in the employee's home, for there is no plausible alteration in the activity of [919 F.2d 1211] the employer that would substantially reduce the likelihood of such a tort. This overstates the case a bit; one can imagine a plaintiff's arguing that if the employer had not made the employee work so hard the employee would have been more alert and therefore more careful and the accident would not have occurred. But the law has to draw some lines for ease of administration, and a rough-and-ready one is between accidents on the job and accidents off the job--including accidents while commuting--in recognition of the fact that the employer's ability to prevent accidents by employees is normally much less when the employees are not at work. Indiana recognizes, however, that the line is indeed a rough one, and it allows juries to cross it when particular circumstances make the line inapt to the purpose that it seeks to implement. Whether it is wise to give juries such discretion is not our business, at least given the parties' agreement that the state rule empowering the jury to decide whether the accident was within the scope of the employment governs this case.

    17

    The Postal Service, Farringer's employer, requires its rural postal carriers to furnish their own vehicle (Farringer's was a pick-up truck) in making their rounds. Postal Operations Manual Sec. 634.21 (1985). The alternative would be for the Service to buy or lease mail trucks for these carriers to use. A possible consequence of the choice it has made is to increase the amount of driving over what it would be if the Service furnished the vehicles. No family with one car (and precious few with two) would want to leave its car at work and thereby have to find an alternative method of commuting. The Postal Service's rule pretty much guarantees that its mailmen will drive to and from work, and by doing this it increases the amount of driving compared to a system in which, since the mailman does not need to have his own car at work, he can take a train or bus or join a car pool. One cost of more driving is more accidents, and this cost can be made a cost to the Postal Service, and thus influence its choice between furnishing its mailmen with vehicles and requiring them to furnish their own, if the scope of employment is defined for purposes of tort law as including commuting in all cases in which the employee is required to furnish a vehicle for use at work. The argument for liability might actually seem stronger than if the employer had furnished the vehicle. But it must be borne in mind that the question of the employer's liability in cases involving a company-owned vehicle arises only when the vehicle is being used outside of work time; and here it can be argued that a person furnished with a company car is apt to drive more, and more carelessly, than if he were using his own car.

    18

    All this is highly speculative. The Postal Service's rule is limited to rural deliverymen, and neither public transportation nor car pooling is common in rural America. Especially since any expansion in tort liability is bound to be a source of litigation costs and judicial burdens, we could not be sufficiently confident concerning the effects of liability to be justified in laying down a general rule that employers who require their employees to use their own vehicle on the job, or permit them to use a company vehicle off the job, are liable for the employees' accidents while commuting in that vehicle; nor would that be a plausible extrapolation from the Indiana cases. But additional evidence in this case points to employer liability. According to testimony that for purposes of this appeal (only) we must take to be true, Farringer's postmaster required the postal carriers to take the most direct route in driving to and from work, and hence not to divagate for personal business. Nor was the carrier to stop for such business, or give anyone a ride. And he was to fasten his seatbelt (this was before Indiana passed a seatbelt law). The record does not reveal the reasons for these requirements. They may just reflect the Postal Service's fear of being held liable for commuting accidents and its concomitant desire to minimize the length of the trip and number of persons in the employee's car in order to reduce the likelihood of accidents. If this is right the plaintiff can do nothing with the requirements, because a person's fear of being held liable is not a reason for the law's [919 F.2d 1212] holding the person liable. An employer should not be held liable, and therefore penalized, for taking steps rationally designed to minimize its liability by increasing the safety of its operations.

    19

    Another possibility, however, is that the Postal Service was trying to minimize time lost by its employees from work and its workers' compensation costs, for the government interprets the federal employees' compensation law to include the commuting accidents of postal workers. U.S. Dept. of Labor, Wage and Labor Standards Administration, Bureau of Employees' Compensation, FECA Memorandum No. 104 (Oct. 24, 1969), interpreting 5 U.S.C. Sec. 8102(a); but see Avasthi v. United States, 608 F.2d 1059 (5th Cir.1979). This is not to suggest that the scope of liability for workers' compensation purposes is identical to that for liability to third-party victims of those workers' torts; in fact it is broader. Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 544-45 (1961). The point is different. If the Postal Service insists for time's sake that the carrier always travel to and from work by the most direct route, which may not be the safest route, the Service should be liable for the accidents that result from this directive; it has made them more likely.

    20

    The rules of commuting that the postmaster has imposed upon his carriers may also or instead reflect a belief that the work of a rural deliveryman begins when he gets into his car in the morning and ends when he gets out of it in the evening. For during all that time he has control over an essential instrumentality of postal service--the delivery van--albeit supplied by the deliverer. This underscores the earlier point that the Postal Service has made a choice between buying its own fleet of vans and pressing its employees' vans into service, and may bring the case within the orbit of State v. Gibbs. It is as if the Postal Service had decided to store its vans at night in its employees' garages. But against this is the fact that the mileage allowance which the Service gives its employees when they use their own vehicle on the job does not include the use of the vehicle in commuting. Moreover, there is no general rule making the employer liable for a commuting accident merely because he supplied the vehicle. Biel no doubt is a special case, and so is Michael, where the employer-owned car was being used purely for personal business, since it was the employee's day off; and in State v. Gibbs the employer was held liable. On the other hand Jackson seems indistinguishable from State v. Gibbs, yet was decided in favor of the employer. The analysis sketched above suggests that there is no magic to the employer's supplying the car; the functional argument (promotion of safety) for employer liability is as strong if he makes the employee bring his own car. Gibbs v. Miller imposed liability in such a case. Of course the two Gibbs cases are factually different from our case--every case is factually different from every other case--but that is no warrant for refusing to follow them in this case unless the factual differences between them and this case are connected with a difference in principle.

    21

    After and because of the accident, the Postal Service fired Farringer. This may have been because it feared that he might have a similar accident, for which the Service would incontestably be liable, while on the job; another possibility however is that the Service considered the tort he did commit to have occurred on the job. But this consideration seems merely to duplicate the one discussed in the preceding paragraph, and it is therefore entitled to no weight.

    22

    Not only may the imposition of liability on the Postal Service be consistent with most of the Indiana cases (indeed all but Jackson ); it is consistent with all three of the formulas that courts in Indiana and elsewhere intone when they are trying to generalize about scope of employment. Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La.1985). By driving to and from work Farringer conferred a benefit on his employer because he was bringing an essential instrumentality of the employer's business. (True, the employer would not have cared if Farringer had left his truck in the post office parking lot and [919 F.2d 1213] thumbed a ride to work, but few employees would thus forgo all personal use of their vehicle.) The employer exerted substantial control over the employee's commuting, as shown by the regulations discussed earlier. And finally the employee while commuting was in the service of the employer because he was keeping and maintaining the instrumentality.

    23

    These "tests" should not be thought conclusive. Tests divorced from purposes tend not to be useful, let alone conclusive, and the linkage between the tests and what the discussion in this opinion conjectures is the underlying purpose of the scope of employment concept is obscure. The law has drawn a line between at work and at home but treats commuting as an intermediate zone that can be placed within or outside the scope of employment depending on circumstances, though the presumption is in favor of outside. The purpose of a doctrine determines what circumstances are relevant. The purpose of this doctrine may be to induce the employer to consider activity changes that might reduce the number of accidents. One possible change might be to substitute a fleet of postal vans for the employees' personal vehicles driven to and from work daily perhaps over substantial distances.

    24

    In attempting to predict how the Indiana courts would have decided this case had it been brought in such a court (which it could not have been, of course, because the federal government has not consented to be sued in state courts), this court necessarily is speculating. There is no reason to apologize for this acknowledgment. The decision of a federal court in a diversity case, or in any other case in which state law supplies the rule of decision, is an exercise in predicting how the highest court of the state would decide the case if it were presented to it. When the relevant decisions of the state's courts do not articulate the grounds that animate their results, and the issue is not suitable for certification to the state supreme court (perhaps because as here it is highly fact-specific), the federal court has no choice but to speculate as to what the true grounds might be or to supply grounds that it thinks might recommend themselves to the state's courts in the future. It is in that spirit that this opinion has sought to bring modern scholarship to bear on the vexing issue of scope of employment in commuting cases.

    25

    The unavoidably speculative character of the analysis furnishes an additional reason for believing that the district court acted prematurely in granting summary judgment. The more nebulous or unsettled the legal standard, the more difficult it should be to exclude contested facts from consideration on the ground that they are immaterial. If the Indiana rule excluding commuting from the scope of employment were strict, the Postal Service would be right to argue that it is immaterial why it fired Farringer. But as it is not strict, the question may be material. Perhaps the Postal Service fired Farringer because it considers commuting to be part of working and because it has a policy of firing people who kill tortiously in the course of their employment with the Service. The scope of federal employees' compensation may be irrelevant to scope of employment for liability purposes, but then again it may not be. Perhaps as the facts are developed it will become evident that Farringer was not acting within the scope of his employment, but on the basis of the record compiled thus far it cannot be said that no reasonable jury could find that he was.

    26

    It should go without saying that the recitation of facts in this opinion is tentative; the facts may appear quite different after further proceedings. In particular the nature of and authority for the various rules to which the Knightstown Post Office where Farringer worked, as distinct from the Postal Service itself, subjected Farringer are wholly unclear.

    27

    One final point. The plaintiff joined Farringer as a pendent party defendant, and the district court dismissed Farringer from the suit without prejudice after deciding to dismiss the main claim, that is, the claim against the United States. The court did this on the familiar ground that, with immaterial exceptions, when the main claim [919 F.2d 1214] drops out before trial the court should relinquish jurisdiction over all pendent claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The result was right, but not the reasoning. The Supreme Court had held several months before the judgment in this case that there is no pendent party jurisdiction in cases brought under the Tort Claims Act. Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989). The district court never acquired jurisdiction over Farringer (for he and the decedent, whose citizenship is what counts for diversity purposes although his personal representative is the actual party, 28 U.S.C. Sec. 1332(c)(2), are both citizens of Indiana)--against whom, by the way, the plaintiff has filed a parallel suit in state court. Although Finley was decided after the present suit was brought, there is no reason not to apply it to this case; the harm to the plaintiff is slight, since she has another and solvent defendant (the United States) to pursue in this case, and a suit against Farringer in state court.

    28

    The dismissal of Farringer (without prejudice, of course) is affirmed, albeit on a different ground from the district judge's; but the dismissal of the United States is reversed and the case remanded for further proceedings consistent with this opinion. Costs in this court to the plaintiff.

    29

    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

    30
    RIPPLE, Circuit Judge, concurring.
    31

    I concur in the judgment of the court. The record before us certainly contains a genuine issue of triable fact as to whether Mr. Farringer was in the scope of his employment. It is not at all clear whether, at the time of the accident, Mr. Farringer was acting for and on behalf of the Postal Service or was under the control of the Postal Service. In dealing with this issue on remand, the district court must assess, in my view, the totality of the circumstances--not simply the reason for Mr. Farringer's discharge.

    32
    MANION, Circuit Judge, concurring.
    33

    The majority opinion examines several scenarios of what might have occurred. As with any summary judgment appeal, however, we examine one question--is there any genuine issue as to any material fact that precludes summary judgment as a matter of law? In my view there may be one, and thus I am willing to concur in the remand.

    34

    Indiana law is clear that, with very limited exceptions, an employee is not within the scope of his employment while driving to and from work. The facts in this case present fewer "incidental benefits" than the facts of the Indiana Supreme Court case setting forth this general rule. See Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617 (1959). Unless we have some exceptional circumstance, a rural postal worker driving to work is on his own and not within the scope of his employment.[1]

    35

    In an attempt to circumvent this rule, the plaintiff alleges that Farringer's postmaster required him and other carriers who drove their own car to conduct no personal business en route to and from work, to take the most direct route, not to carry any passengers, and to fasten their seatbelts. Although these are simply allegations, even if taken as true the majority opinion appropriately minimizes their consequence (ante p. 1212). These allegations are not sufficient to invoke the two narrow factbound exceptions to Biel as established by the Indiana Court of Appeals.

    36

    [919 F.2d 1215] In Gibbs v. Miller, 152 Ind.App. 326, 283 N.E.2d 592 (3d Dist.1972), a salesman was in an accident while returning home for lunch from an appointment with a customer. He was not expected in the office that day. He had another appointment scheduled following lunch, and also planned to do some paperwork at home during lunch. He was being reimbursed for mileage from his home to the morning appointment and back. A jury found the employer liable, and the appeals court, although troubled by the paucity of evidence, refused to overturn the jury verdict as a matter of law.

    37

    In State v. Gibbs, 166 Ind.App. 387, 336 N.E.2d 703 (1st Dist.1975), a jury held the state liable for $100,000 following an accident involving an employee of the Indiana State Highway Commission. The employee's job involved considerable driving, so the state furnished him with a car that was checked out to him at all times. He was allowed to drive it home after work and to lunch during the work day, but was not to use it for other personal business. Although he worked a 7:30 to 5:00 day, he considered himself on call 24 hours a day. He finished conducting tests at 5 p.m. on the night of the accident and drove to the office to speak with his supervisor. The supervisor wasn't there, so after reading notes left on his desk the employee headed for several local restaurants where his supervisor sometimes went after work. He still could not find the supervisor, and eventually drove to another town to eat dinner. The injury occurred after dinner on his way home. Again, the appeals court refused to reverse the jury verdict despite its concern over the slight evidence of employer liability. The court emphasized that the employee was driving a state vehicle home from work so he could return directly to his job in the morning, and that he was on call 24 hours a day. Inexplicably, the Biel case was not even cited.[2]

    38

    Our case is factually different than either of those narrow exceptions to the general rule--there is virtually no evidence that Farringer was in the scope of his employment. Farringer was driving his own car to work, not the government's. He was not providing any benefit to the government while en route; his job did not begin until he reached the post office to sort and pick up his mail for delivery. He was not, as in Gibbs v. Miller, going home for lunch and to do some paperwork in between business appointments, while receiving payment for mileage incurred on the trip.[3] He was not, as in State v. Gibbs, properly driving a state-owned vehicle home from work following the day's activities, while on call 24 hours a day. Rather, he was simply travelling to work. Until he is at work, Indiana does not impose his misdeeds on the employer.

    39

    This case is much closer to Biel. In Biel, a woman who served as president of a corporation was in the habit of driving a company car to and from work. Although the company paid for the oil and gas, taxes and upkeep on the vehicle, the Indiana Supreme Court held that Mrs. Biel was not within the scope of her employment when driving the company car to work. Even if we accept Farringer's unsupported (and illogical) contentions that he was required to follow a certain route, to wear a seat belt, and to not take passengers on his way to work, this case is not factually close to the two state appellate court cases providing narrow exceptions to the rule set out by the Indiana Supreme Court.

    40

    The only pertinent question having some bearing on whether Farringer was in the scope of his employment centers on his termination, supposedly because of the accident. If he was terminated because of some policy regulating his travel to and from work, and if that policy is so encumbering that it puts him in the scope of [919 F.2d 1216] employment even while driving to work, a trial may be warranted to determine if those facts merit an exception under Indiana law. But if that policy is nothing more than a provision that drivers with poor driving records cannot remain as rural postal drivers, or something similarly general, summary judgment would be appropriate. Aside from that one possibility, I do not agree with this court that the "employer exerted substantial control over the employee's commuting, as shown by the regulations discussed...." The opinion acknowledges those tests are not conclusive and that "we necessarily are speculating." Indiana law is clear that "an employee on his way to work is normally not in the employment of the corporation." Biel, 161 N.E.2d at 618. Unless Farringer was terminated for violating some specific driving policy covering rural postal drivers on their way to and from work, the normal rule should apply and summary judgment in favor of the government is entirely appropriate.

    41

    [1] As we recognized in Pace v. Southern Express Company, 409 F.2d 331, 333 (7th Cir.1969), Indiana law is "well settled" that an employee travelling to or from work is not within the scope of his employment. This rule has been applied in a variety of cases under a variety of factual circumstances. See e.g.: City of Crawfordsville v. Michael, 479 N.E.2d 102 (Ind.App. 1 Dist.1985); Pursley for Benefit of Clark v. Ford Motor, 462 N.E.2d 247 (Ind.App. 2 Dist.1984); Pace v. Couture, 150 Ind.App. 220, 276 N.E.2d 213 (1972); Marion Trucking Co. v. Byers, 121 Ind.App. 592, 97 N.E.2d 635 (1951); North Side Chevrolet, Inc. v. Clark, 107 Ind.App. 592, 25 N.E.2d 1011 (1940); Neyenhaus v. Daum, 102 Ind.App. 106, 1 N.E.2d 281 (1936); Haynes v. Stroh, 99 Ind.App. 595, 193 N.E. 721 (1935).

    42

    [2] State v. Gibbs was explicitly narrowed by a later court of appeals case. In City of Crawfordsville, supra, 479 N.E.2d at 104, the court held that "Gibbs is an exception to the well-settled rule" of Biel, and that, "[a]s such, we are hesitant to apply it beyond its specific facts."

    43

    [3] In addition to salary and benefits Farringer did receive an allowance for mileage and maintenance. However, this allowance was based only on the miles covered by the mail carrier during delivery of his route, and not on the distance he travelled to and from work. See Supplemental Appendix of Appellee at 122.

  • 2 Forster v. Red Top Sedan Service

    Plaintiff was driving in front of defendant’s bus, operated by defendant’s employee (Breines). Breines used his bus to force plaintiff’s car to stop or enter a collision. After plaintiff stopped, Breines exited his bus and walked over to the driver’s door of the plaintiff’s car. He then opened the driver’s door, swore at the plaintiff for delaying his schedule, and tried to reach for the car keys while pushing plaintiff in the face. Breines also struck the plaintiff’s wife when she tried to protect her husband’s face from being pushed.

    Can an employee’s overly zealous, violent or aggressive conduct still remain in the scope of their duties? What if that conduct includes intentional torts, such as battery and assault? This case addresses those questions.

    1
    257 So.2d 95
    2
    Vincent FORSTER and Lillian Forster, his wife, Appellants,
    v.
    RED TOP SEDAN SERVICE, INC., etc., Appellee.
    3
    No. 71--561.
    4
    District Court of Appeal of Florida, Third District.
    5
    Jan. 18, 1972.
    Rehearing Denied Feb. 9, 1972.
    6

    [257 So.2d 96] Pozen, Pestcoe, Gold & Gold, Miami, for appellants.

    7

    Preddy, Haddad, Kutner & Hardy, Miami, for appellee.

    8

    Before SWANN, C.J., and PEARSON and HENDRY, JJ.

    9
    HENDRY, Judge.
    10

    Appellants were plaintiffs in an action against the defendants to recover damages for an assault and battery made upon plaintiffs by defendant driver of a bus of Red Top Sedan Service, Inc.

    11

    The amended complaint charged in two of the counts that Red Top's driver, Harvey Breines drove its bus in such a manner as to intentionally run plaintiffs' vehicle off the highway, and that defendant driver assaulted and battered both plaintiffs. Count III alleged that defendant Red Top was negligent in hiring Breines and entrusting him with a dangerous instrumentality in view of his prior propensity for violence of the kind and nature described in the complaint.

    12

    Defendants moved to dismiss the amended complaint for failure to state a cause of action and it was denied. An answer of general denial was filed. The cause was set for jury trial on the issues. At the conclusion of plaintiffs' case the trial judge granted defendant Red Top's motion for directed verdict. The defendant driver was voluntarily dismissed from the suit prior thereto.

    13

    The plaintiffs have appealed from the final judgment in favor of the defendant.

    14

    The evidence adduced showed that Vincent Forster and his wife Lillian, were driving east on the Airport Expressway after having stopped at the airport to let a friend get out of their car. A large bus, previously behind the plaintiffs' vehicle, drove up beside their car. It began driving closer and closer, pushing their car over toward the median strip. The bus then pulled ahead and in front of the plaintiffs' car and came to an abrupt stop. In order to avoid a collision Mr. Forster slammed on his brakes.

    15

    While Mr. Forster was in his car strapped in his seat with the seat belt, the bus driver, Breines, went back to the Forsters' car. He jerked open the door on the side of the driver and swore that no 'old bastard' would delay his schedule and 'hold him up from getting to the Beach.' Thereupon, he reached for the keys and began pushing Mr. Forster in the face. When Mrs. Forster tried to protect her husband's face, Breines struck her also.

    16

    Breines had been employed by Red Top as a driver of its limousines and buses for about one month prior to this incident. It was customary for him to drive Red Top's buses and limousines between the airport and Miami Beach. At the time of this occurrence he was on his way from the airport to Miami Beach to pick up a group of people.

    17

    Plaintiffs' counsel attempted to question Breines, while on the witness stand, regarding his criminal and driving records. Objections to the questions were interposed by the defendant's counsel and sustained by the court. Proffer was made showing convictions of violent crimes and traffic violations.

    18

    The court also sustained objections to questions propounded to officials of Red Top who were witnesses, relating to the hiring practices and procedures of the company.

    19

    Plaintiffs are urging reversal on two grounds: (1) that it was error for the trial court to direct a verdict for the defendant and, (2) that the court erred in sustaining defendant's objections to questions [257 So.2d 97] propounded by plaintiff's counsel to the defendant regarding his record of convictions of violent crimes and traffic violations; that the court further erred in denying the plaintiffs' right to question officials of Red Top regarding its employment practices.

    20

    First, appellants argue in support of reversal that where the bus company's employee forced plaintiffs' vehicle off the road without coming in contact with plaintiffs' vehicle, and then assaulted and battered plaintiffs because he believed they had delayed him in the performance of his duties, the bus company was vicariously liable for its driver's misconduct.

    21

    The trial court disagreed with appellant's contentions in this regard and held that the employee was not acting within the scope of his employment, but was performing an act entirely personal to himself and not in the prosecution of the master's business.

    22

    We have carefully considered the point in the light of the record, briefs and arguments of counsel and have concluded that the trial judge erred in directing a verdict for the defendant in that it is not in accord with the rules enunciated by this court in Hurst v. Krinzman, Fla.App.1970, 237 So.2d 333, and numerous other appellate decisions of the courts of Florida.

    23

    It appears to us that upon consideration of all the testimony and varying inferences and conclusions there were issues of fact which should have been submitted to a jury, under proper instructions. City of Miami v. Simpson, Fla.1965, 172 So.2d 435, 437; Sixty-Six, Inc. v. Finley, Fla.App.1967, 224 So.2d 381, 383 and cases cited; Columbia by the Sea, Inc. v. Petty, Fla.App.1963, 157 So.2d 190, 194.

    24

    Count III of the amended complaint was based upon the alleged negligence and conclusions of Red Top in hiring the defendant driver. It was error for the court to deny plaintiffs the right to submit evidence on this issue. Davis v. Major Oil Company, Fla.App.1964, 164 So.2d 558; Sixty-Six, Inc. v. Finley, supra.

    25

    The judgment appealed is reversed and the cause is remanded for further proceedings.

  • 3 Reina v. Metropolitan Dade County

    Plaintiff boarded defendant’s bus, operated by an employee (Koch) of the defendant. Because the plaintiff failed to pay the exact fare, Koch let the plaintiff off the bus in an inconvenient fashion. As the plaintiff departed the bus, he made an obscene gesture to Koch. At that point, Koch pulled the bus off to the side of the road, chased after the plaintiff, and beat him.

    This case explores the boundaries of an employer’s liability for their employee’s intentional torts.

    1
    285 So.2d 648
    2
    Ricardo REINA, Appellant,
    v.
    METROPOLITAN DADE COUNTY, Florida, etc., et al., Appellees.
    3
    No. 73-230.
    4
    District Court of Appeal of Florida, Third District.
    5
    Oct. 30, 1973.
    Rehearing Denied Dec. 7, 1973.
    6

    [285 So.2d 649] Horton & Perse, and Arnold R. Ginsberg; Fuller, Brumer, Moss & Cohen, Miami, for appellant.

    7

    Henry L. Oppenborn, Jr., and Sam Daniels, Miami, for appellees.

    8

    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.

    9
    PER CURIAM.
    10

    The appellant seeks review of an adverse final judgment, entered pursuant to a directed verdict, in an action to recover damages for an assault and battery committed upon the appellant-plaintiff by a bus driver (defendant's employee).

    11

    The plaintiff boarded a County bus operated by James Koch. He placed a quarter in the fare box and the bus driver exchanged words with him regarding the fare being 30 cents, not 25 cents. Several blocks further, the plaintiff pulled the cord to signal the driver that he wanted to get off the bus, but the driver did not stop. The plaintiff again pulled the cord and the driver stopped in the center of the street. After the plaintiff got off the bus (when he had reached the sidewalk) he made an obscene gesture to the driver. When the driver saw the gesture, he pulled the bus off to the side of the road, stopped, and ran after the plaintiff, yelling at him. The driver kicked and beat the plaintiff, as a consequence of which the plaintiff was hospitalized. The plaintiff sued both the bus driver (Koch) and the County. At the trial of plaintiff's action against the County, both plaintiff and the County moved for directed verdicts at the close of the evidence. The plaintiff's motion was denied and the County's granted. Final judgment was entered on the directed verdict in favor of the County, from which the plaintiff appeals.

    12

    The appellant contends the trial court erred in granting the defendant's motion for directed verdict, when the following evidence existed from which a jury might lawfully find in favor of the plaintiff: That, because of the 'hot pursuit' of plaintiff by the bus driver, the contract of carriage had not terminated when the plaintiff was assaulted and the County could be found liable on the principles regarding the common carrier-passenger relationship; and that, because the bus driver was motivated by a desire to further the interests of his employer when he assaulted the plaintiff and because the assault was a continuation of the verbal altercation on the bus, the County could be found liable on the principles of respondeat superior, citing primarily Columbia By The Sea, Inc. v. Petty, Fla.App.1963, 157 So.2d 190; Forster v. Red Top Sedan Service, Inc., Fla.App.1972, 257 So.2d 95; Anno. 34 A.L.R. 372, and cases cited therein.

    13

    The appellee replies to this argument that Forster v. Red Top Sedan Service, Inc., supra, is inapplicable under the circumstances because in the cited case the conduct on the part of the injured party, which was impeding the progress of the bus towards the beach, was likely to continue as the bus proceeded down the expressway. The facts in the instant case are just the opposite. The passenger had alighted the bus and was across the street when he was attacked. His conduct could not have impeded the progress of the bus as it continued on its route. We believe the trial judge was correct in the entry of his order directing a verdict for the County. See: Weiss v. Jacobson, Fla.1953, 62 So.2d 904; White v. Alleghany Cab Co., Inc., S.Ct.N.Y.1941, 29 N.Y.S.2d 272; George v. Youngstown Municipal Ry. Co., 49 Ohio Law Abst. 412, 86 N.E.2d 916.

    14

    [285 So.2d 650] The other points urged for reversal have been examined and found to be without merit.

    15

    Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.

    16

    Affirmed.

  • 4 Miami Herald Publishing Co. v. Kendall

    Plaintiff was struck by a motorcycle. The operator of the motorcycle (Molesworth) was delivering defendant’s newspaper. It is unclear what the employment status of Molesworth was at the time of the accident. Plaintiff insists that Molesworth was an employee and that defendant was therefore vicariously liable for her injuries. Defendant insists that Molesworth was an independent contractor, relieving the company of vicarious liability.

    This case demonstrates how courts determine whether a particular actor is an independent contractor or an employee.

    1
    88 So.2d 276
    2
    The MIAMI HERALD PUBLISHING COMPANY, a corporation, Appellant,
    v.
    Mrs. Mary KENDALL, a widow, Appellee.
    3
    Supreme Court of Florida, Special Division B.
    4
    March 7, 1956.
    Rehearing Denied June 7, 1956.
    5

    Dixon, DeJarnette, Bradford & Williams and H. Reid DeJarnette, Miami, for appellant.

    6

    Edward E. Fleming and Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

    7
    THOMAS, Justice.
    8

    The appellee was awarded a verdict in her action against the appellant for injuries she received when she was struck by a motorcycle operated by Wayne Molesworth who was, at the time, delivering the morning issue of the Miami Herald.

    9

    There is no dispute about the negligence of Molesworth; in fact, it is conceded that [88 So.2d 277] he was at fault and that the appellee was injured as a result of his wrongdoing.

    10

    The question here for decision is the status of Molesworth at the time of the mishap. The appellant contends he was an independent contractor; the appellee insists he was an employee of the appellant and that appellant is therefore liable for the injury caused her.

    11

    For nearly twenty years newsboys have delivered the Miami Herald under a contract identical with, or similar to, the one involved in this litigation which contains the provision, among others, that 'the NEWSDEALER is a separate, independent contractor and not subject to the exercise of any control by the PUBLISHER over his method of distributing or otherwise handling the delivery of said newspaper within his territory other than as expressly set forth in this contract * * *.' (Italics supplied.)

    12

    The contract between the appellant and Molesworth carried the provisions that the appellant would furnish Molesworth, at a stipulated price, as many copies of daily and Sunday editions as he ordered, would supply him with the names and addresses of all persons wishing the newspaper to be delivered to them in the territory assigned to Molesworth, would credit the carrier for shortages of papers, and would credit Molesworth 'for subscriptions paid in advance * * *.'

    13

    The appellant asserts that the facts in the instant case so closely resemble those with which we dealt in Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847, that the present controversy may be determined in its favor on authority of that decision. The appellant also insists that the pivotal question is one of law notwithstanding the circuit judge's action in submitting the issue of Molesworth's status to the jury.

    14

    The appellant reminds us of a familiar criterion by which it may usually be determined whether one performing services is an independent contractor or employee, that is, roughly, if the one securing the services controls the means by which the task is accomplished, the one performing the service is an employee, if not, he is an independent contractor. The contract, says the appellant, by its very terms made the newscarrier an independent contractor, and any control exercised by appellant was directed to the result--not the manner of performance.

    15

    Before turning to the appellee's position, it seems logical to quote from the opinion in Florida Publishing Co. v. Lourcey, supra, the part appellant quoted in its brief because the language we will italicize brings into focus the issue in this appeal:

    16

    'The contract in terms provides that Seig 'shall at all times occupy the position of an independent contractor and control all ways, means, method of conveyance, and distribution relating to the proper performance and completion of the agreement. The corporation looks only to the party of the third part and said carrier to obtain the desired results as herein set out'.

    'These provisions were ample to make Seig an independent contractor if they were not to all intents and purposes vitiated by other provisions of the contract or the practice of the parties under it. * * *

    'The parts of the contract relied on to deprive it of its independent carrier relation are the provisions with reference to its termination, promoting the circulation of the corporation's newspapers, the free distribution of sample copies and the retention of subscription lists from the carrier including the practice of the carrier in the performance of these provisions.

    * * *

    * * *

    'We find nothing in any of these requirements or the practice under them to deprive the contract of its independent character. It was in every respect lawful and normally without danger to others and Seig was subject to the will of the corporation only as to results of his work and he was permitted to perform it according to [88 So.2d 278] his own methods. * * *' (Italics supplied.)

    17

    The appellee contends that there was abundant evidence that the manner of the performance of Molesworth's services supported the conclusion that he was under the control of the appellant to such extent as to be an employee. In Sec. 220, Restatement of the Law of Agency, recognized in Margarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858, the important factors bearing on the subject are set forth. So the question, from appellee's standpoint, is whether or not the record supports the jury's finding that the newsboy was an employee because of the 'practice of the parties' under the contract regardless of the caption and language of the instrument.

    18

    We have detailed the provisions of the contract with reference to the obligations of the publisher. We now condense the contents of the contract defining the obligations of the newscarrier. He was to furnish the names of new subscribers, to pay to the appellant within a certain time money collected, to present within 48 hours claims for shortages in papers, to call attention to the appellant within six days to errors in statements, to handle The Miami Herald exclusively, to keep in confidence the names of subscribers, to select a substitute in the event he was unable to make his deliveries and be 'responsible' for the substitute, to bear all costs of enforcing the contract, to give bond for his faithful performance of the agreement, to acquaint any successor with the route and list of subscribers, to secure delivery of papers in good condition, and to undertake to increase the number of subscribers.

    19

    Either party could terminate the contract without cause on fifteen days' notice and the appellant could terminate it for cause without notice.

    20

    Our study of the contents of the contract, and particularly the part we have italicized, leads us to the belief that the instrument was intended by both parties to make Molesworth an independent contractor and we frankly say that we have this view not only because of the express conditions we have abridged but also because of the specific mention of an element we consider important, if not essential, that is, the method Molesworth was to employ in carrying the papers to the subscribers once he had received them from appellant. Not only in the contract but in the practical operation under it, the circumstances of which we will presently describe, it was left entirely to Molesworth to select the conveyance which he would use to transport the papers from the point of origin to the subscribers' front porches.

    21

    We turn now to see, from the testimony favorable to the appellee's contention, the nature of the services actually performed and the supervision the appellant exercised over the manner in which its newspapers reached the subscribers through Molesworth or, as appellee puts it, the supervision of the means by which Molesworth performed his work. The newsboy began his work at 4:30 in the morning by getting the papers and folding them. He then started on his route and at 6:30 he finished. If Molesworth overslept, the appellant's manager would go to his home and rout him out of bed. The newsboy was required to deliver the papers in an 'unwrinkled condition' and to accomplish this could fold the papers 'in threes or fours.' Although nobody described to him the exact way to fold the papers, he was evidently told that he could not fold them in 'biscuits.' The agent of the appellant apparently 'rode herd' on the newsboys to see that deliveries were made to the subscribers and 'that everything was going all right.'

    22

    It was the practice for complaints about the service to be made either to the appellant or the newsboy. If a subscriber did not receive his paper or had got one that was wet, the representative would see that the subscriber received a good paper and Molesworth would be fined ten cents. For each such improper delivery the carrier would get a yellow slip and if ten yellow slips, representing as many complaints, should be issued, the contract could be terminated. In case of a serious complaint the newspaper's representative would take [88 So.2d 279] the newsboy to the customer's home for a conference.

    23

    The appellant fixed the retail price of the paper. If payments for subscriptions were received in advance, the payment could be made either to the appellant or to Molesworth, but Molesworth was obligated to pay the appellant for the papers he received whether he collected from the subscribers or not. The newsboy was furnished with customers' cards and a ring on which to keep them. Weekly meetings were held by the appellant's representative and the newsboys for the general purpose of improving the business of appellant as well as the carriers.

    24

    We do not find that the extra-contractual activities of the contracting parties neutralized the provisions of the agreement which to us were obviously intended to make Molesworth an independent contractor.

    25

    Although we agree with the appellee that the facts peculiar to each case govern the decision, we turn now to Florida Publishing Co. v. Lourcey, supra, to see what supervision was exerted by the publisher over the newspaper distributor who, we decided, was an independent contractor under the contract and evidence in that case.

    26

    The similarity in degree of supervision is striking. For instance, we learn from the original record in the cited case that papers were required to be delivered within certain hours; complaints were made direct to the publisher; the publisher received advance payments for subscriptions; the newscarriers were required to attend promotional meetings; the publisher supplied subscribers with issues of the paper in case of mis-delivery or non-delivery, but the carrier was not fined; the carrier was under bond; and delivery tickets were supplied to the carrier by the publisher. The carrier furnished his own automobile but there was evidence, which we consider significant, that a representative of the publisher examined the vehicle periodically to see that it was in good condition.

    27

    We have studied the 'matters of fact' listed in the Restatement of the Law of Agency, supra, that are to be considered in 'determining whether one acting for another is a servant or an independent contractor.' In this consideration we have not found that every element is so clearly present as to establish beyond argument that the arrangement between the appellant and Molesworth was one of independent contractorship, but when all elements are taken together, we think the conclusion is sound. We have already written our view about 'the extent of control' exercised by the publisher over the details of the work, Sec. 220(2)(a). We have the definite opinion that newspaper boys as they perform their work generally in this country have a place in the pattern of American life that constitutes a 'distinct occupation,' Sec. 220(2)(b), and that the provisions of the contract in this case are harmonious with this idea. True, there was some supervision by the publisher's representative but while the newsboy was actually making his deliveries, he was acting alone and was a specialist, at least to the extent of following his route, remembering the addresses of subscribers who were in good standing, and collecting and properly accounting for funds coming into his hands, Sec. 220(c) and (d). The newscarrier furnished his own instrumentality, a motorcycle, Sec. 220(2)(e). The length of the engagement, or rather the condition for termination of the engagement, was specified in the contract, Sec. 220(2)(f). The method of payment, that is by the subscriber to the newsboy, was the compensation received under the contract, and the newsboy became indebted for papers delivered to him by the publisher whether or not he collected from the subscriber, Sec. 220(2)(g). We do not doubt that distribution of newspapers is a part of the regular business of the publisher but there is no reason that this cannot be done by independent contract, Sec. 220(2)(h). From the contract it is clear to us that the parties believed they were making Molesworth an independent contractor, Sec. 220(2)(i).

    28

    We are satisfied that the salient facts were not in dispute and that the basic [88 So.2d 280] question was one of law. Having concluded that Molesworth was an independent contractor, it follows that the judgment should be----

    29

    Reversed.

    30

    DREW, C. J., and O'CONNELL and BARNS, JJ., concur.

  • 5 Murrell v. Goertz

    Defendant was collecting monthly payments for newspaper subscriptions. Plaintiff, a subscriber, questioned defendant about damage to her screen door due to newspapers being thrown at it. An argument ensued, in which plaintiff slapped the defendant, who then struck back.

    This case discusses the circumstances which render the determination of independent contract status a question of law, and not a question of fact.

    1
    597 P.2d 1223
    2
    Mrs. C. L. MURRELL, Appellant,
    v.
    Bruce GOERTZ, and the Oklahoma Publishing Company, Appellee.
    3
    No. 52282.
    4
    Court of Appeals of Oklahoma, Division No. 1.
    5
    May 1, 1979.
    Rehearing Denied June 5, 1979.
    Certiorari Denied July 16, 1979.
    Released for Publication by Order of Court of Appeals July 19, 1979.
    6

    [597 P.2d 1224] Appeal from the District Court of Oklahoma County; Carmon Harris, judge.

    7

    AFFIRMED.

    8

    Phillip W. Redwine, Norman, Foliart, Mills & Niemeyer, Oklahoma City, for appellant.

    9

    Harry R. Palmer, Jr., Oklahoma City, for appellee.

    10
    [597 P.2d 1225] REYNOLDS, Judge:
    11

    Mrs. C. L. Murrell, plaintiff in the trial court, appeals the order sustaining the motion for summary judgment in favor of co-defendant Oklahoma Publishing Company (appellee), in a suit for damages resulting from an alleged assault and battery by co-defendant Bruce Goertz.

    12

    On August 27, 1976, Bruce Goertz was making monthly collections for the delivery of appellant's morning newspaper, the Daily Oklahoman, which is published by appellee. Appellant questioned Goertz concerning damage to appellant's screen door caused by the newspaper carrier throwing the newspaper into it. An argument ensued culminating in appellant slapping Goertz who in turn struck appellant. As a result thereof, appellant was allegedly injured, requiring medical treatment and subsequent hospitalization. Appellant filed suit in the District Court of Oklahoma County seeking a total of $52,500 for past and future medical expenses, pain and suffering, and exemplary damages.

    13

    Appellant's petition contends that Goertz was a servant of appellee either by agreement between the co-defendants, or by appellee creating the apparent belief in appellant that Goertz was a servant by allowing Goertz to deliver the paper, advertise that product, and to collect for accounts due. Both appellee and Goertz answered denying that Goertz was appellee's servant.

    14

    Pursuant to District Court Rule 13, appellee filed a motion for summary judgment which was sustained by the trial court. The trial court then denied appellant's motion for new trial and this appeal was perfected.

    15

    A summary judgment is properly granted only where the pleadings, exhibits, admissions, and depositions present no substantial controversy as to material facts or issues. Weeks v. Wedgewood Village, Inc., Okl., 554 P.2d 780 (1976). The movant must show that there is no substantial controversy as to the material facts or issues. Once the movant has accomplished this, the opponent then has the burden of showing that evidence is available that would justify a trial of the issue. Runyon v. Reid, Okl., 510 P.2d 943 (1973).

    16

    The line of demarcation between an independent contractor and a servant is not clearly drawn. An independent contractor is one who engages to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof. Miller Construction Co. v. Wenhold, Okl., 458 P.2d 637 (1969). The parties agree that the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work. Dodd v. Rush, Okl., 406 P.2d 261 (1965).

    17

    To determine if a person is a servant or an independent contractor, one must look to the facts of each case. Hartwig v. Benham Engineering Co., Okl.App., 519 P.2d 932 (1974). If the evidence concerning the status of a party defendant is reasonably susceptible of but a single inference, the question is one purely to be decided by the court. Coe v. Esau, Okl., 377 P.2d 815 (1963). Where the defendant's status forms a material issue in the case and the facts bearing on that issue are disputed, or where there is room for reasonable difference of opinion as to the proper inference to be drawn from the known facts, the issue is for the jury under proper instructions by the court, Morian v. Lollis, Okl., 371 P.2d 473 (1962), and it is error to withhold the issue from their determination. Texaco, Inc. v. Layton, Okl., 395 P.2d 393 (1964).

    18

    Appellant contends that the distribution of papers and the collection of money therefor is an integral part of appellee's business. Appellant cites the following factors as indicative of the high degree of control appellee possesses over the physical details of the work: ultimate control over [597 P.2d 1226] the territorial boundaries of Goertz's route; appellee set a standard policy that paper deliveries be completed by 6 a. m.; appellee set policy that all papers were to be held by rubber bands; customers who were missed by the carrier called appellee to report it; complaints concerning the service were lodged with appellee; and new subscribers called appellee to initiate newspaper service.

    19

    Appellee submits that the affidavit of Russell Westbrook and Goertz's deposition reveal that Goertz had no contact with appellee. Westbrook stated that he was an independent newspaper distributor for appellee and that he employed Bruce Goertz as an independent carrier salesman. Westbrook further stated that Goertz was responsible only to him for the delivery of the newspapers and was in no way under the supervision, dominion, and control of appellee. By the terms of Westbrook's contract, he was an independent contractor and likewise not subject to the supervision, dominion, and control of appellee as to the manner and method of performing his job. Appellee further cites the statements of Westbrook and Goertz that Goertz was collecting money for Westbrook at the time of the incident with appellant, and that appellee received money only from Westbrook.

    20

    From a review of the record we conclude that the evidence is reasonably susceptible of but one inference. Bruce Goertz was hired as an independent carrier salesman by his friend Russell Westbrook, who was himself an independent contractor. Appellee had no input into the decision to hire Goertz and had no knowledge of his employment. Goertz had no direct contract with appellee in his business operations. While appellee established certain policies and standards to which all distributors and carriers were to adhere, such policies and standards do not rise to that level of supervision, dominion, and control over Goertz's day to day activities as to make him appellee's servant.

    21

    AFFIRMED.

    22

    ROMANG, P. J., and BOX, J., concur.

  • 6 Baptist Memorial Hospital System v. Sampson

    Appellee was bitten by a venomous spider. She was taken to the emergency room in the appellant's hospital. The emergency room physician misdiagnosed the venomous bite as an allergic reaction. Fourteen hours later, with her condition rapidly deteriorating, appellee went to another hospital where she was admitted to the intensive care unit in septic shock. There, appellee received the proper treatment which saved her life. Appellee sued the appellant on a theory of vicarious liability, as the emergency room physicians were not employees as a matter of law.

    Should hospitals be liable for the misdiagnoses of physicians that they hire as independent contractors?

    1
    969 S.W.2d 945
    2
    41 Tex. Sup. Ct. J. 833
    3
    BAPTIST MEMORIAL HOSPITAL SYSTEM, Petitioner,
    v.
    Rhea SAMPSON, Respondent.
    4
    No. 97-0268.
    5
    Supreme Court of Texas.
    6
    Argued Dec. 2, 1997.
    Decided May 21, 1998.
    Rehearing Overruled July 3, 1998.
    7

    [969 S.W.2d 946] Ruth G. Malinas, George F. Evans, Jr., San Antonio, for Petitioner.

    8

    Oliver S. Heard, Jr., Luis R. Vera, Jr., Clifton F. Douglass, III, Karl E. Hays, San Antonio, for Respondent.

    9

    PHILLIPS, Chief Justice, delivered the opinion of the Court.

    10

    In this case, we decide whether the plaintiff raised a genuine issue of material fact that defendant Hospital was vicariously liable under the theory of ostensible agency for an emergency room physician's negligence. We granted Baptist Memorial Hospital System's application for writ of error to resolve a conflict in the holdings of our courts of appeals regarding the elements required to establish liability against a hospital for the acts of an independent contractor emergency room physician. We hold that the plaintiff has not met her burden to raise a fact issue on each element of this theory. Accordingly, we reverse the judgment of the court of appeals, 940 S.W.2d 128, and render judgment that the plaintiff take nothing.

    11
    I
    12

    On March 23, 1990, Rhea Sampson was bitten on the arm by an unidentified creature that was later identified as a brown recluse spider. By that evening, her arm was swollen and painful, and a friend took her to the Southeast Baptist Hospital emergency room. Dr. Susan Howle, an emergency room physician, examined Sampson, diagnosed an allergic reaction, administered Benadryl and a shot of painkiller, prescribed medication for pain and swelling, and sent her home. Her condition grew worse, and she returned to the Hospital's emergency room by ambulance a little over a day later. This time Dr. Mark Zakula, another emergency room physician, treated her. He administered additional pain medication and released her with instructions to continue the treatment Dr. Howle prescribed. About fourteen hours later, with her condition rapidly deteriorating, Sampson went to another hospital and was admitted to the intensive care ward in septic shock. There, her bite was diagnosed as that of a brown recluse spider, and the proper treatment was administered to save her life. Sampson allegedly continues to have recurrent pain and sensitivity where she was [969 S.W.2d 947] bitten, respiratory difficulties, and extensive scarring.

    13

    Sampson sued Drs. Howle and Zakula for medical malpractice. She also sued Baptist Memorial Hospital System ("BMHS"), of which Southeast Baptist Hospital is a member, for negligence in failing to properly diagnose and treat her, failing to properly instruct medical personnel in the diagnosis and treatment of brown recluse spider bites, failing to maintain policies regarding review of diagnoses, and in credentialing Dr. Zakula. Sampson also alleged that the Hospital was vicariously liable for Dr. Zakula's alleged negligence under an ostensible agency theory. Sampson nonsuited Dr. Howle early in the discovery process. The trial court granted BMHS summary judgment on Sampson's claims of vicarious liability and negligent treatment. The trial court severed those claims from her negligent credentialing claim against BMHS and her malpractice claim against Dr. Zakula. [1] Sampson appealed only on the vicarious liability theory.

    14

    Both parties agree that BMHS established as a matter of law that Dr. Zakula was not its agent or employee. Thus the burden shifted to Sampson to raise a fact issue on each element of her ostensible agency theory, which Texas courts have held to be in the nature of an affirmative defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Smith v. Baptist Mem'l Hosp. Sys., 720 S.W.2d 618, 622 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.), disapproved on other grounds by St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 n. 1 (Tex.1997). Sampson contended that she raised a material fact issue on whether Dr. Zakula was BMHS's ostensible agent. The court of appeals, with one justice dissenting, agreed and reversed the summary judgment. 940 S.W.2d 128. In our review, we must first determine the proper elements of ostensible agency, then decide whether Sampson raised a genuine issue of material fact on each of these elements.

    15
    II
    16

    Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995); RESTATEMENT (SECOND) OF AGENCY § 219 (1958). The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent or employee's work. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex.1964); RESTATEMENT (SECOND) OF AGENCY § 220, cmt. d. Because an independent contractor has sole control over the means and methods of the work to be accomplished, however, the individual or entity that hires the independent contractor is generally not vicariously liable for the tort or negligence of that person. See Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex.1990); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). Nevertheless, an individual or entity may act in a manner that makes it liable for the conduct of one who is not its agent at all or who, although an agent, has acted outside the scope of his or her authority. Liability may be imposed in this manner under the doctrine of ostensible agency in circumstances when the principal's conduct should equitably prevent it from denying the existence of an agency. [2] [969 S.W.2d 948] See, e.g., Marble Falls Hous. Auth. v. McKinley, 474 S.W.2d 292, 294 (Tex.Civ.App.--Austin 1971, writ ref'd n.r.e.). Ostensible agency in Texas is based on the notion of estoppel, that is, a representation by the principal causing justifiable reliance and resulting harm. See Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex.1984); RESTATEMENT (SECOND) OF AGENCY § 267; KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 105, at 733-34 (5 th ed.1984).

    17

    Texas courts have applied these basic agency concepts to many kinds of principals, including hospitals. See Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 585 (Tex.1977) (explaining that "[h]ospitals are subject to the principles of agency law which apply to others"). A hospital is ordinarily not liable for the negligence of a physician who is an independent contractor. See, e.g., Berel v. HCA Health Servs., 881 S.W.2d 21, 23 (Tex.App.--Houston [1 st Dist.] 1994, writ denied); Jeffcoat v. Phillips, 534 S.W.2d 168, 172 (Tex.Civ.App.--Houston [14 th Dist.] 1976, writ ref'd n.r.e.). On the other hand, a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency. See, e.g., Lopez v. Central Plains Reg'l Hosp., 859 S.W.2d 600, 605 (Tex.App.--Amarillo 1993, no writ), disapproved on other grounds by Agbor, 952 S.W.2d at 509 n. 1; Nicholson v. Mem'l Hosp. Sys., 722 S.W.2d 746, 750 (Tex.App.--Houston [14 th Dist.] 1986, writ ref'd n.r.e.).

    18
    III
    19

    In this case, the court of appeals held that two distinct theories of vicarious liability with different elements are available in Texas to impose liability on a hospital for emergency room physician negligence: agency by estoppel (referred to in this opinion as ostensible agency), based on the Restatement (Second) of Agency section 267, and apparent agency, based on the Restatement (Second) of Torts section 429. See 940 S.W.2d at 131. Under section 267, the party asserting ostensible agency must demonstrate that (1) the principal, by its conduct, (2) caused him or her to reasonably believe that the putative agent was an employee or agent of the principal, and (3) that he or she justifiably relied on the appearance of agency. RESTATEMENT (SECOND) OF AGENCY § 267 (1958). Although neither party mentioned section 429 in the trial court or in their briefs to the court of appeals, the court of appeals then proceeded to adopt section 429 and hold that under that section, plaintiff had only to raise a fact issue on two elements: (1) the patient looked to the hospital, rather than the individual physician, for treatment; and (2) the hospital held out the physician as its employee. See 940 S.W.2d at 132. Holding that the plaintiff had established a genuine issue of material fact on each element of this latter affirmative defense, the court reversed and remanded to the trial court for trial on the merits. The court of appeals further suggested that a hospital could do nothing to avoid holding out a physician in its emergency room as its employee because notification to prospective patients in any form would be ineffectual:

    20

    [W]e take an additional step in our analysis to consider whether notice provided in consent forms and posted in emergency rooms can ever be sufficient to negate a hospital's "holding out"....

    ....

    ... Because we do not believe hospitals should be allowed to avoid such responsibility, we encourage the full leap--imposing a nondelegable duty on hospitals for the negligence of emergency room physicians.

    21

    940 S.W.2d at 135-136. Thus, the court of appeals would create a nondelegable duty on [969 S.W.2d 949] a hospital solely because it opens its doors for business.

    22

    We first reject the court of appeals' conclusion that there are two methods, one "more difficult to prove" than the other, to establish the liability of a hospital for the malpractice of an emergency room physician. 940 S.W.2d at 132. Our courts have uniformly required proof of all three elements of section 267 to invoke the fiction that one should be responsible for the acts of another who is not in fact an agent acting within his or her scope of authority. As we have explained:

    23

    Apparent authority in Texas is based on estoppel. It may arise either from a principal knowingly permitting an agent to hold herself out as having authority or by a principal's actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority she purports to exercise....

    A prerequisite to a proper finding of apparent authority is evidence of conduct by the principal relied upon by the party asserting the estoppel defense which would lead a reasonably prudent person to believe an agent had authority to so act.

    24

    Ames v. Great S. Bank, 672 S.W.2d at 450; see also, e.g., Douglass v. Panama, Inc., 504 S.W.2d 776, 778-79 (Tex.1974); Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427 (1953). Thus, to establish a hospital's liability for an independent contractor's medical malpractice based on ostensible agency, a plaintiff must show that (1) he or she had a reasonable belief that the physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold herself out as the hospital's agent or employee, and (3) he or she justifiably relied on the representation of authority. See, e.g., Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 820 (Tex.App.--Amarillo 1995, writ denied); Lopez, 859 S.W.2d at 605; Nicholson, 722 S.W.2d at 750. While a few courts of appeals have referred to section 429, it has never before been adopted in this state by any appellate court. See Smith, 822 S.W.2d at 72-73 (mentioning Restatement (Second) of Torts section 429 as additional support, but recognizing that the applicable rule is provided by Restatement (Second) of Agency section 267); Byrd v. Skyline Equip. Co., 792 S.W.2d 195, 197 (Tex.App.--Austin 1990), writ denied per curiam, 808 S.W.2d 463 (Tex.1991) (citing section 429 as an additional reason summary judgment in the case was improper); Brownsville Med. Ctr. v. Gracia, 704 S.W.2d 68, 74 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.) (after stating that section 267 provides the applicable rule, mentions section 429 as additional authority). To the extent that the Restatement (Second) of Torts section 429 proposes a conflicting standard for establishing liability, we expressly decline to adopt it in Texas.

    25

    Next, we reject the suggestion of the court of appeals quoted above that we disregard the traditional rules and take "the full leap" of imposing a nondelegable duty on Texas hospitals for the malpractice of emergency room physicians. 940 S.W.2d at 136. Imposing such a duty is not necessary to safeguard patients in hospital emergency rooms. A patient injured by a physician's malpractice is not without a remedy. The injured patient ordinarily has a cause of action against the negligent physician, and may retain a direct cause of action against the hospital if the hospital was negligent in the performance of a duty owed directly to the patient. See, e.g., Diaz v. Westphal, 941 S.W.2d 96, 98 (Tex.1997); Medical & Surgical Mem'l Hosp. v. Cauthorn, 229 S.W.2d 932, 934 (Tex.Civ.App.--El Paso 1949, writ ref'd n.r.e.).

    26
    IV
    27

    We now examine the record below in light of the appropriate standard. The Hospital may be held liable for the negligence of Dr. Zakula if Sampson can demonstrate that (1) she held a reasonable belief that Dr. Zakula was an employee or agent of the Hospital, (2) her belief was generated by some conduct on the part of the Hospital, and (3) she justifiably relied on the appearance that Dr. Zakula was an agent or employee [969 S.W.2d 950] of the Hospital. See, e.g., Drennan, 905 S.W.2d at 820.

    28

    As summary judgment evidence, BMHS offered the affidavit of Dr. Potyka, an emergency room physician, which established that the emergency room doctors are not the actual agents, servants, or employees of the Hospital, and are not subject to the supervision, management, direction, or control of the Hospital when treating patients. Dr. Potyka further stated that when Dr. Zakula treated Sampson, signs were posted in the emergency room notifying patients that the emergency room physicians were independent contractors. Dr. Potyka's affidavit also established that the Hospital did not collect any fees for emergency room physician services and that the physicians billed the patients directly. BMHS presented copies of signed consent forms as additional summary judgment evidence. During both of Sampson's visits to the Hospital emergency room, before being examined or treated, Sampson signed a "Consent for Diagnosis, Treatment and Hospital Care" form explaining that all physicians at the Hospital are independent contractors who exercise their own professional judgment without control by the Hospital. The consent forms read in part:

    29

    I acknowledge and agree that ..., Southeast Baptist Hospital, ... and any Hospital operated as a part of Baptist Memorial Hospital System, is not responsible for the judgment or conduct of any physician who treats or provides a professional service to me, but rather each physician is an independent contractor who is self-employed and is not the agent, servant or employee of the hospital.

    30

    To establish her claim of ostensible agency, Sampson offered her own affidavits. In her original affidavit, she stated that although the Hospital directed her to sign several pieces of paper before she was examined, she did not read them and no one explained their contents to her. Her supplemental affidavit stated that she did not recall signing the documents and that she did not, at any time during her visit to the emergency room, see any signs stating that the doctors who work in the emergency room are not employees of the Hospital. Both affidavits state that she did not choose which doctor would treat her and that, at all times, she believed that a physician employed by the hospital was treating her. Based on this record we must determine if Sampson produced sufficient summary judgment evidence to raise a genuine issue of material fact on each element of ostensible agency, thereby defeating BMHS's summary judgment motion.

    31

    Even if Sampson's belief that Dr. Zakula was a hospital employee were reasonable, that belief, as we have seen, must be based on or generated by some conduct on the part of the Hospital. "No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts." Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The summary judgment proof establishes that the Hospital took no affirmative act to make actual or prospective patients think the emergency room physicians were its agents or employees, and did not fail to take reasonable efforts to disabuse them of such a notion. As a matter of law, on this record, no conduct by the Hospital would lead a reasonable patient to believe that the treating emergency room physicians were hospital employees.

    32

    Sampson has failed to raise a fact issue on at least one essential element of her claim. Accordingly, we reverse the judgment of the court of appeals and render judgment that Sampson take nothing.

    33

    [1] Sampson subsequently nonsuited her negligent credentialing claim against BMHS.

    34

    [2] Many courts use the terms ostensible agency, apparent agency, apparent authority, and agency by estoppel interchangeably. As a practical matter, there is no distinction among them. See, e.g., Birmingham-Jefferson County Transit Auth. v. Arvan, 669 So.2d 825, 830-31 (Ala.1995), (Cook, J., dissenting from overruling of application for rehearing); State of Fla. Dep't of Transp. v. Heckman, 644 So.2d 527, 529 (Fla.Dist.Ct.App.1994); Kissun v. Humana, Inc., 267 Ga. 419, 479 S.E.2d 751, 752 (1997); O'Banner v. McDonald's Corp., 173 Ill.2d 208, 218 Ill.Dec. 910, 670 N.E.2d 632, 634 (1996); Deal v. North Carolina State Univ., 114 N.C.App. 643, 442 S.E.2d 360, 362 (1994); Hill v. St. Claire's Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 490 N.E.2d 823, 827 (1986); Evans v. Ohio State Univ., 112 Ohio App.3d 724, 680 N.E.2d 161, 174 (Ohio Ct.App.1996); Luddington v. Bodenvest Ltd., 855 P.2d 204, 209 (Utah 1993); Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 386 (Wyo.1995). But see Guillot v. Blue Cross of La., 690 So.2d 91, 99 (La.Ct.App.1997) (Saunders, J., concurring and dissenting) (stating apparent authority is based on contract law, whereas agency by estoppel is grounded in tort principles); Houghland v. Grant, 119 N.M. 422, 891 P.2d 563, 568 (1995)(recognizing that although ostensible agency and agency by estoppel are based on slightly different rationales, the theories have been used interchangeably). See also McWilliams & Russell, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L. REV. 431, 445-452 (1996). Regardless of the term used, the purpose of the doctrine is to prevent injustice and protect those who have been misled. See Roberts v. Haltom City, 543 S.W.2d 75, 80 (Tex.1976).

  • 7 Smalich v. Westfall

    Two automobiles collided. In one car was plaintiff, her son, and Westfall. Plaintiff owned the vehicle, but Westfall was driving. Blank was driving the other car. Westfall’s negligent driving was found to be a proximate cause of the collision.

    Will Westfall’s contributory negligence prevent plaintiff from recovering against Blank? To answer this question, the court made a predicate inquiry: whether plaintiff and Westfall had a relationship which made plaintiff vicariously liable for Westfall’s driving. This case illustrates the doctrine of imputed contributory negligence.

    1
    440 Pa. 409 (1970)
    2
    Smalich et al., Appellants,
    v.
    Westfall.
    3

    Supreme Court of Pennsylvania.

    4
    Argued October 6, 1969.
    5
    October 9, 1970. 
    6

    [410] Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

    7

    Morton B. DeBroff, with him David R. Gold, for appellant.

    8

    Carl E. Fisher, with him Robinson, Fisher & Long, for appellee.

    9
    OPINION BY MR. JUSTICE EAGEN, October 9, 1970:
    10

    Two automobiles collided in Westmoreland County. One of the vehicles, owned by Julia Smalich, was operated by Felix Rush Westfall. Julia Smalich and her minor son, Michael, were passengers in this automobile at the time. The other vehicle involved was operated by Stephanna Louise Blank. Julia Smalich suffered injuries in the collision which caused her death. Michael Smalich was injured, but recovered.

    11

    This action in trespass was later instituted, naming both Westfall and Blank as defendants. The estate of Julia Smalich sought damages in both a wrongful death action and a survival action. Marco Smalich, the guardian of the minor, claimed damages for the minor's [411] injuries on behalf of the minor and on his own behalf as guardian.

    12

    At trial, the jury returned a verdict in favor of all plaintiffs and against both defendants. Damages were awarded in the wrongful death action in the sum of $1025; in the survival action in the sum of $2000; in the guardian's action in the sum of $166.50; and in the minor's action in the sum of $20,000. Post-trial motions were timely filed by defendant Blank, seeking judgment notwithstanding the verdict in the actions on behalf of the Smalich Estate and a new trial in the actions on behalf of the minor and the guardian. Both motions were granted by the court en banc below. The plaintiffs appealed.

    13
    The Minor's Action
    14

    In this instance, the court below awarded a new trial because it concluded that the verdict was against the weight of the evidence, and was also excessive. We have said many times that the grant of a new trial lies within the inherent power of the trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial: Kralik v. Cromwell, 435 Pa. 613, 258 A. 2d 654 (1969); Getz v. Balliet, 431 Pa. 441, 246 A. 2d 108 (1968); Guzman v. Bloom, 413 Pa. 576, 198 A. 2d 499 (1964). An examination of the record fails to persuade us that the court abused its discretion in awarding a new trial in the actions involving the minor's injuries, and we will, therefore, affirm its order in this respect.

    15
    Actions on Behalf of the Estate
    16

    The trial jury found that Westfall's negligent operation of the Smalich automobile was a proximate [412] cause of the collision. That the trial record amply supports this finding is not and cannot be questioned. After trial, the court en banc ruled that, under the facts, the contributory negligence of Westfall must be imputed to the owner of the automobile as a matter of law, and this precluded recovery by the Smalich Estate against defendant Blank. This conclusion of the court below was based on our ruling in Beam v. Pittsburgh Railways Co., 366 Pa. 360, 77 A. 2d 634 (1951), and admittedly was clearly dictated by that decision.

    17

    In Beam we held that where the owner of an automobile is present while it is being negligently operated by another, there is a presumption that the owner of the vehicle has the power to control it, and, in the absence of evidence to the contrary, a relationship of principal and agent or master and servant exists between the owner and driver, because of which the driver's contributory negligence is imputed to the owner, barring the owner from recovering for injuries caused by the negligence of a third person. In considering the instant case, we have re-examined Beam and conclude that, as to the portion of the holding above set forth, it should be overruled and no longer be recognized as the law of this Commonwealth.

    18

    First, a plaintiff ought not to be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person: Prosser, The Law of Torts § 73 (3d ed. 1964). See also, Restatement (Second), Torts §§ 485, 486 and 491 (1965). Placed in the context of this case, a driver's negligence will not be imputed to a passenger, unless the relationship between them is such that the passenger would be vicariously liable as a defendant for the [413] driver's negligent acts: See Beam v. Pittsburgh Railways Co., supra. The relationship between the passenger and the driver is therefore a very critical one, worthy of careful analysis and consideration.

    19

    At least three relationships could exist between an owner-passenger and a driver of an automobile: (1) bailor-bailee; (2) principal-agent; and (3) master-servant.

    20

    A bailment is a delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he reclaims it: Wright v. Sterling Land Co., 157 Pa. Superior Ct. 625, 43 A. 2d 614 (1945). As a general rule, a bailor is not liable for the negligence of the bailee in the operation of a bailed chattel: Brower v. Employers' Liability Assurance Co., Ltd., 318 Pa. 440, 177 A. 826 (1935); McColligan v. Penna. R.R. Co., 214 Pa. 229, 63 A. 792 (1906); Hajduk v. Fague, 200 Pa. Superior Ct. 55, 186 A. 2d 869 (1962). Therefore in an action in trespass by a bailor to recover for damage to the thing bailed, caused by the negligent act of a third party, the contributory negligence of the bailee is no defense, unless the bailee was at the time acting as the bailor's servant: Commercial Banking Corp. v. P.T.C., 162 Pa. Superior Ct. 158, 56 A. 2d 344 (1948); Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d ed. 1964). And the fact that a bailor shares the use of the thing bailed (here, rides as a passenger in the automobile) with his bailee does not necessarily cause a termination of the bailment and create a new relationship: Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 280 (1931).

    21

    Agency is the relationship which results from (1) the manifestation of consent of one person to another [414] that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act: Chalupiak v. Stahlman, 368 Pa. 83, 81 A. 2d 577 (1951); Restatement (Second), Agency § 1 (1) (1958). Such agency results only if there is an agreement for the creation of a fiduciary relationship with control by the beneficiary: Rosenberg v. Cohen, 370 Pa. 507, 88 A. 2d 707 (1952); Restatement (Second), Agency § 1, comments a and b (1958). "The right of control by the principal may be exercised by prescribing what the agent shall or shall not do before the agent acts, or at the time when he acts, or at both times . . . . Further, the principal has power to revoke the agent's authority, although this would constitute a breach of his contract with him . . . . The control of the principal does not, however, include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective:" Restatement (Second), Agency § 14, comment a. Since an agent who is not a servant is not subject to any right of control by his principal over the details of his physical conduct, the responsibility rests upon the agent alone, and the principal is not liable, for harm caused by his unauthorized negligent physical conduct: Commonwealth v. Minds Coal Mining Corp., 360 Pa. 7, 60 A. 2d 14 (1948); Restatement (Second), Agency § 250 (1958). Thus it has long been said to be the general rule that there is no vicarious liability upon the principal in such case: Prosser, The Law of Torts § 70 (3d ed. 1964).

    22

    "A master is a species of principal, and a servant is a species of agent:" Restatement (Second), Agency § 2, comment a. "A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant [415] is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master:" Restatement (Second), Agency § 2 (1) and (2) (Emphasis added.) Thus a master not only controls the results of the work but also may direct the manner in which such work shall be done, and a servant, in rendering the agreed services, remains entirely under the control and direction of the master: Joseph v. United Workers Assn., 343 Pa. 636, 23 A. 2d 470 (1942); McColligan v. Penna. R.R. Co., supra. "Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal. . .:" Commonwealth v. Minds Coal Mining Corp., supra, at 17. Because a master has the right to exercise control over the physical activities of the servant within the time of service, he is vicariously liable for the servant's negligent acts committed within the scope of his employment: Restatement (Second), Agency § 219 (1958); Prosser, The Law of Torts § 69 (3d ed. 1964). Therefore, the master is likewise barred from recovery against a negligent defendant by the contributory negligence of his servant acting within the scope of his employment: Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d ed. 1964). Beam, supra, correctly so stated this law applicable to a master.

    23

    In essence, we now recognize that, contrary to what we have said in many prior automobile accident cases,[1] [416] only one of the three relationships discussed above, that of master-servant, gives rise to vicarious liability for negligence.[2] Perhaps many of the harsh results sometimes associated with the imputation of contributory negligence can be attributed to our mistaken assumption that a principal is vicariously liable for the negligent acts of his agent. We therefore now state unequivocally that only a master-servant relationship or a finding of a joint enterprise[3] will justify an imputation of contributory negligence.

    24

    We have serious doubt that, in the ordinary situation, the mutual understanding of the owner-passenger and the driver is that the owner-passenger reserves a right to control over the physical details of driving or that the driver consents to submit himself to the control of a "back-seat driver." It seems more reasonable that the mutual understanding is that the driver will use care and skill to accomplish a result, retaining control over the manner of operation yet subject to the duty of obedience to the wishes of the owner-passenger as to such things as destination. Such would only constitute an agency relationship and not one of master-servant, although there are undoubtedly situations where the understanding might well be such as to constitute [417] a master-servant relationship.[4] All that we now hold is that the character of the relationship created by the parties must be determined from their express agreement or from the circumstances, which may be disclosed at trial. "The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby, or impute to him the driver's negligence:"[5] Beam v. Pittsburgh Railways Co., supra, at 370. Nor will it any longer create a presumption of a master-servant relationship.

    25

    We do not mean, however, that the presence of the owner is entirely irrelevant, or that there is no legal significance that an owner present in his car has the power to control it.[6] These are relevant in determining whether the owner-passenger has been actually negligent himself[7] in failing to control the conduct of the driver. See Restatement of Torts, § 495. Any passenger is required to exercise reasonable care for his own safety, and will be barred from recovery if he unreasonably [418] fails to warn the driver of a danger which he discovers or to make use of an ability to control the negligence which he may possess: Landy v. Rosenstein, 325 Pa. 209, 188 A. 855 (1937); Highton v. Penna. Railroad Co., 132 Pa. Superior Ct. 559, 1 A. 2d 568 (1938); Restatement (Second), Torts § 495 (1965). "Any circumstance which gives the plaintiff reason to believe that his advice, directions, or warnings would be heeded is important in determining whether he is barred from recovery by his failure to attempt to give them.. . . The fact that the plaintiff owns the vehicle or the chattel which to his knowledge is being carelessly used, is . . . of importance, since one who is driving another's vehicle or using his chattel is more likely to pay attention to the owner's directions than he would be to the directions of a guest in his own car:" Restatement (Second), Torts § 495, comment e (1965). This differs from imputed contributory negligence, where due to the relationship between the passenger and driver, the negligence of the driver is in all cases imputed to the passenger. Under this rule, "in order to bar the plaintiff from recovery . . ., it is necessary that the plaintiff know or should know that it is essential for his safety to control the conduct of the third person:" Restatement (Second), Torts § 495, comment d (1965).

    26

    We repeat, the precise nature of the relationship between the owner-passenger and the driver, under the evidence, presents a question of fact which it is the exclusive function of the jury to determine, except where the facts are not in dispute and the evidence is direct and certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inferences of fact: Joseph v. United Workers Assn., supra. In this case, the lower court charged the jury on the issue of imputed contributory negligence in accordance [419] with our decision in Beam, supra, and, in so doing, granted the following specific requests for charge of the plaintiffs: "No. 6: The mere presence of a car owner in that automobile while it is being driven by another, does not necessarily mean that the operation of the car is within the control of the owner. No. 7: If you find that the decedent, Julia Smalich, relinquished her right to control her automobile, either expressly or impliedly, by words, actions or conduct, and at the time of the accident had transferred that right to control the car to the defendant Westfall, then you should find that any conduct by defendant Westfall cannot affect or bar the right of the decedent's personal representative to recover in this case." The jury rendered a verdict for the plaintiffs against defendant Blank, and, therefore, must have determined that Julia Smalich had relinquished her right to control her automobile to defendant Westfall. On the facts, such a conclusion is justified under the law as we have now stated it. Judgments n.o.v. should not, therefore, have been entered in favor of defendant Blank and against the Smalich Estate. These judgments are vacated, and the record remanded with directions to enter judgments in favor of the Smalich Estate and against defendant Blank in accordance with the jury's verdict.[8]

    27

    The order of the court below awarding a new trial in the actions involving the minor is affirmed. Judgments n.o.v. in the actions on behalf of the Smalich Estate are vacated and the record remanded with directions.

    28

    Mr. Chief Justice BELL concurs in the result.

    29
    [420] CONCURRING OPINION BY MR. JUSTICE ROBERTS:
    30

    I am pleased that the Court today partially repudiates the imputed contributory negligence doctrine. I am unable to join the majority's opinion, however, because I believe that in adopting a limited "both ways" test, it falls short of accomplishing the degree of reform necessary in this area. I am particularly disturbed that the majority, in continuing to apply the doctrine to the master-servant relationship, places so much weight on the physical control a master has over a servant. I therefore can only concur in the result.

    31

    The imputed contributory negligence doctrine has been criticized on two grounds. For one, it is quite obvious that the doctrine is based on the absurd fiction that the owner-passenger has the "right" to control the vehicle.[1] In the real world, however, a passenger can in no safe way exercise operational control over the vehicle in which he rides, even if he is the owner.[2] But the imputed contributory negligence doctrine requires the owner-passenger not only to constantly advise the driver, but also to seize the wheel if need be. For if [421] he does not actively seek to pull his negligent driver out of trouble, he will have to shoulder any losses he may suffer in an accident. Of course if he does interfere, he is likely to be found actively negligent.[3] One wonders what the owner should do if he is riding in the back seat;[4] perhaps he should just go to sleep.[5]

    32

    A second weakness in the doctrine of imputed contributory negligence arises from the fact that courts have often failed to discern the difference between using the fiction of control to impute negligence when the owner-passenger is the defendant, and using it to impute contributory negligence when the owner-passenger is the plaintiff. The assumption has been that if the driver's negligence is imputed, it is only logical to likewise impute his contributory negligence. But there is no justification for imputing contributory negligence, other than "the strong psychological appeal of all rules cast in the form of balanced and logical symmetry."[6] Unfortunately, the empty formalism of this approach, an example of what Harper and James have termed the "both-ways test,"[7] even became imbedded in the first [422] Restatement of Torts § 485: "[A] plaintiff is barred from recovery by the negligent act or omission of a third person if, but only if, the relation between them is such that the plaintiff would be liable as a defendant for harm caused to others by such negligent conduct of a third person."

    33

    Courts and commentators have been quick to see these two errors in the doctrine. The fiction was criticized even when applied to a horse-drawn carriage, see Hoag v. New York C. & H.R.R. Co., 111 N.Y. 199, 203, 18 N.E. 648, 649 (1888), and the criticism mounted when the fiction was applied to automobiles: "Any attempted exercise of the right of control by wresting the wheel from the driver would be foolhardy. Equally menacing to the driver's efficient operation of the machine are raucous reproaches, strident denunciations, or even persistent unctuous admonitions from the back seat." Sherman v. Korff, 353 Mich. 387, 395, 91 N.W. 2d 485, 487 (1958). For similar statements, see, e.g., Painter v. Lingon, 193 Va. 840, 848, 71 S.E. 2d 355, 360 (1952); Jenks v. Veeder Contracting Co., 177 Misc. 240, 243, 30 N.Y.S. 2d 278, 281 (1941), aff'd, 264 App. Div. 979, 37 N.Y.S. 2d 230 (1942), appeal dismissed, 289 N.Y. 787, 46 N.E. 2d 848 (1943); cf. Southern Pacific Co. v. Wright, 248 F. 261, 264 (9th Cir. 1918).

    34

    Similarly, the "both-ways test" has been strongly criticized. In 1932 it was written that "[c]ourts seem unaware that the policies involved in granting or denying the defensive plea may be different from those controlling the responsibility in damages of a master for the conduct of his servant, and that the latter are probably concerned simply with providing a financially responsible defendant." Gregory, Vicarious Responsibility and Contributory Negligence, 41 Yale L.J. 831, 833 (1932). In Johnson v. Los Angeles-Seattle Motor Express, [423] Inc., 222 Ore. 377, 387, 352 P. 2d 1091, 1095 (1960), the Supreme Court of Oregon rejected the doctrine stating: "The practical necessity for imposing liability on an owner in the cases which do justify the doctrine of imputed liability is not present in the situation where the owner is an injured passenger in his own car. The two-way test of the Restatement does not commend itself as either useful or necessary. Its only virtue, as pointed out in Harper and James, supra, is that it is logical and symmetrical. Important legal rights ought to have better footing than mere architectural symmetry."

    35

    It should be noted that the majority does not adopt the old "both ways" test but rather the view of the revised Restatement of Torts, for while § 485 partially abolishes the imputed negligence doctrine, that doctrine is retained in the areas of master-servant relations and joint enterprise. See §§ 486, 491 Restatement of Torts (Second). However, I submit that the criticisms I have noted above concerning the imputed contributory negligence doctrine apply with equal force to the two exceptions carved out by the second Restatement.

    36

    In these days of congested travel on high speed highways, the dangers of requiring that someone wrest control of a vehicle from the driver if the latter is negligent certainly are present whether the driver is the bailee, agent or servant of the passenger. The Supreme Court of Minnesota re-examined the whole problem of imputed contributory negligence recently in a well-reasoned opinion that deserves close study. See Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 144 N.W. 2d 540 (1966). There the court repudiated the application of the doctrine to the master-servant relation in automobile negligence cases, stressing the absurdity of the control argument, and the absence of need for a [424] solvent defendant, unlike vicarious liability cases where the master properly is held accountable for the negligence of his servant.

    37

    I look forward to the day when this Court completes its reform in this area.

    38

    [1] E.g., Beam v. Pittsburgh Railways Co., supra; Mazur v. Klewans, 365 Pa. 76, 73 A. 2d 397 (1950); Von Cannon v. P.T.C., 148 Pa. Superior Ct. 330, 25 A. 2d 584 (1942); and Spegele v. Blumfield, 120 Pa. Superior Ct. 231, 182 A. 149 (1935).

    39

    [2] The necessity of a master-servant relationship seems to have been recognized in the older cases. See, e.g., Lassock v. Bileski, 94 Pa. Superior Ct. 299 (1928); McMahen v. White, 30 Pa. Superior Ct. 169 (1906); and Connor v. Penna. Railroad Co., 24 Pa. Superior Ct. 241 (1904).

    40

    [3] While the existence or absence of a joint enterprise was not raised here or in the court below, we have considered the record with this question in mind. If the proof established such a relationship existed, this would preclude recovery by the Smalich Estate, and if the lower court reached the right result albeit for the wrong reason, its decision would be affirmed. Taylor v. Churchill V. Country Club, 425 Pa. 266, 228 A. 2d 768 (1967). However, we are satisfied that the evidence did not establish a joint enterprise. See Restatement (Second), Torts § 491 (1965).

    41

    [4] For example, if the driver were inexperienced or learning, a prospective purchaser or driving under actual directions.

    42

    [5] Analogous hereto are Restatement (Second), Torts § 487 (husband and wife), § 488 (parent and child), § 489 (bailee) and § 490 (passenger or guest in a vehicle).

    43

    [6] See Beam v. Pittsburgh Railways Co., supra; Mazur v. Klewans, supra headnotes 3 and 6; Von Cannon v. P.T.C., supra headnote 8; and Spegele v. Blumfield, supra headnote 1.

    44

    [7] The statement seems to have actually been intended to apply to this situation. It first appeared in Bell v. Jacobs, 261 Pa. 204, 208, 104 A. 587 (1918) in this context: "It was defendant's car and he acquiesced in what Fink, who was acting for him, did, and cannot be excused because he was not personally at the wheel. A man out riding in his car is not relieved from responsibility for its management because, with his permission, another is acting as driver; and this is especially so where the owner tacitly assents to the manner in which the car is driven. There is a presumption, not here rebutted, that an owner present in his car has power to control it."

    45

    [8] Since the jury rendered a verdict against defendant Blank when the charge was more favorable to her than a charge in accordance with our present opinion would be, defendant Blank has not been harmed hereby.

    46

    __________

    47

    [1] The doctrine of imputed contributory negligence, in the setting involved in this case, has its roots in the 1849 English case of Thorogood v. Bryan, 8 C.B. 115, 137 Eng. Rep. 452. Thorogood was a suit by a passenger of a public omnibus against the owner of another omnibus. The passenger was denied recovery because the driver of her omnibus, as well as the other driver, was negligent. The theory was that the passenger had a measure of control over the driver; he had "employed" the driver and "[i]f he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it." Id. at 132. As Dean Prosser has written, this was a "nonsensical fiction," which was later abandoned in England and by those states which had followed it in America. See Prosser, Handbook of the Law of Torts 502 (3d ed. 1964) (citing cases).

    48

    [2] The owner can, of course, exercise some degree of control when he selects a driver; or, at times, he may be required to give some kind of directional advice, like "slow down." Improper performance of these duties may be active negligence, but that is not involved in this case.

    49

    [3] "In the usual case the passenger has no physical ability to control the operation of the car, and no opportunity to interfere with it; and any attempt on his part to do so in fact would be a dangerously distracting piece of back-seat driving which might very well amount to negligence in itself." Prosser, Handbook of the Law of Torts 494 (3d ed. 1964).

    50

    [4] Cf. Nutt v. Pennsylvania R.R., 281 Pa. 372, 377, 126 Atl. 803, 805 (1924) ("But an invited guest, and especially one who occupies a rear seat in the car where no opportunity of control exists. . . is not concerned with the operating of the car and cannot be viewed as joining with the driver in its operation . . . .")

    51

    [5] Indeed, it has often been held that a driver's contributory negligence cannot be imputed to an owner-passenger who is asleep when the accident occurs. See, e.g., Stafford v. Roadway Transit Co., 165 F. 2d 920 (3d Cir. 1948) (applying Pennsylvania law); Greyhound Lines, Inc. v. Caster, 216 A. 2d 689 (Del. S. Ct. 1966).

    52

    [6] 2 Harper & James, The Law of Torts 1273 (1956).

    53

    [7] See id. at 1273-77.

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