Opinion
For Opinion on Hearing, see 88 Cal.Rptr.188, 471 P.2d 988.
HEARING GRANTED
Frank R. Brown, Van Nuys, for appellant Hinman.
Roger Arnebergh, City Atty., John A. Daly, Asst. City Atty., Nowland C. Hong, [84 Cal.Rptr. 210]Deputy City Atty., for appellant and intervenor, City of Los Angeles.
Morgan, Wenzel, Lynberg & Stearns and Bruce L. Nelson, Los Angeles, for respondent.
ROTH, Presiding Justice.
Eugene Hinman, a Los Angeles policeman, plaintiff and appellant, injured in an accident caused by one Herman, an employee of respondent Westinghouse Electric Company, and the City of Los Angeles as intervenor, appeal from judgment entered on a jury verdict holding respondent not liable in damages to either. Appellants also appeal from the denial of motions for judgment notwithstanding the verdict and for a new trial. The appeal from the latter is dismissed. (Code of Civil Procedure, section 629.)
Appellant Hinman filed a complaint on May 20, 1963 for personal injuries against Herman and against respondent on the theory of respondeat superior.
The City's complaint in intervention was filed on October 2, 1964. Both complaints are on the theory that Herman was acting within the scope of his employment at the time of the accident. Appellants each contend on appeal that the uncontradicted facts established their theory as a matter of law. On February 19, 1968, the action was dismissed as against Herman because of Hinman's failure to make return to the summons within three years.
The action went to trial September 3, 1968 against respondent alone. On September 12, 1968, the jury found for respondent and against both appellants. After the jury had rendered its verdict and was duly polled, the following took place:
'THE COURT: As a matter of information only, May I inquire if you found negligence on the part of Mr. Herman? THE FOREMAN: Yes, sir. THE COURT: Then I assume your decision relates to scope of employment? THE FOREMAN: Yes, sir.'
On May 21, 1962, at approximately 4:15 p. m., Frank Herman, an employee of respondent was returning home from work in Panorama City in his own car on the Golden State Freeway in Los Angeles. Los Angeles Police Officer Hinman was standing on the center divider of the freeway inspecting a possible road hazard. Herman was traveling at about 70 miles per hour. To avoid a vehicle in front of him which slowed down, Herman applied his brakes. The vehicle went into a spin and struck Hinman. Hinman suffered permanent leg injury as a result of the accident. The City of Los Angeles paid for Hinman's medical expenses and for his disability pension.
At the time of the accident, Herman was employed by respondent as an elevator constructor's helper. The Elevator Constructor's Union contract under which he was employed provided for the payment of 'carfare' and travel time computed according to the location of the job site in predetermined zones around the Los Angeles City Hall.
Appellants rely on Kobe v. Industrial Acc. Com., 35 Cal.2d 33, 35, 215 P.2d 736 and Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd., 66 Cal.2d 944, 947, 59 Cal.Rptr. 622, 428 P.2d 606, which hold that an employer-employee relationship may be found to continue as an exception to the usual 'coming and going rule,' where the employer provides travel expenses or compensates the employee for travel time to and from work. (See also Westinghouse Elec. Corp. v. Ind. Acc. Com., 239 Cal.App.2d 533, 535, 48 Cal.Rptr. 758.) Those cases, however, involved the interpretation and application of the phrase 'in the course of the employment' which determines availability of benefits under the Workmen's Compensation Statute.
At bench, appellants seek to hold respondent liable to a third person under the more restrictive doctrine of respondeat superior. Under that doctrine, liability depends upon whether the employee was acting 'within the scope of employment' at [84 Cal.Rptr. 211]the time of the injury to the third person. (Saala v. McFarland, 63 Cal.2d 124, 130, 45 Cal.Rptr. 144, 403 P.2d 400; Rest.2d Agency, §§ 219, 228.) The fact that the employee was compensated for travel time or expenses does not alone establish that he was acting within the scope of his employment. Rather, the 'scope of employment depends upon the alleged employee's activities and when, where, why and how he was acting. Generally, factors to be considered include the intent of the employee, the nature, time and place of his conduct, his actual and implied authority, the work he was hired to do; incidental acts the employer should reasonably have expected would be done, the amount of freedom allowed the employee in performing his duties, whether the act was one the employer might have foreseen, and the other circumstances of the particular case.' (Johnson v. Banducci, 212 Cal.App.2d 254, 262, 27 Cal.Rptr. 764, 768; McIvor v. Savage, 220 Cal.App.2d 128, 136, 33 Cal.Rptr. 740; Saala v. McFarland, supra, 129, 45 Cal.Rptr. 144, 403 P.2d 400.) The trial court therefore correctly refused appellant's motion for judgment notwithstanding the verdict since the question of whether Herman was acting within the scope of his employment was properly submitted to and decided by the jury.
Based on the same erroneous reliane on Kobe v. Industrial Acc. Com., supra, and Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd., supra, appellants claim the trial court improperly refused several instructions. For the reasons stated in the foregoing paragraph, the court properly refused the requested instructions.
Appellants finally claim they were prejudiced because the trial court did not timely inform counsel of one of the instructions which would be given so as to permit a full argument to the jury. The record does show that appellants were told before argument exactly which instructions would be given. The several respondeat superior instructions given by the court correctly stated the law and appellants have shown no prejudice even assuming that the court might have informed them sooner of one particular instruction.
The judgment and the orders denying the motions for judgment notwithstanding the verdict are affirmed.
FLEMING and WRIGHT, JJ., concur.
[*] See 2 Cal.3d 956 for subsequent opinion.