McVicar v. Union Oil Co.

California Court of Appeal Jan 10, 1956 No. Civ. 16549Published

Before: Dooling

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Holding. The court held that an employee traveling to a new work location at his own expense and using his own vehicle, without employer control over the route or method of travel, is not acting within the scope of his employment. Consequently, the employer is not vicariously liable for the employee's torts committed during such travel.

Issues

Whether an employee traveling to a new job site using his own vehicle and at his own expense is acting within the scope of his employment.
Whether the absence of employer control over the means and method of an employee's travel precludes a finding of vicarious liability under the doctrine of respondeat superior.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The essential characteristic of employment relationship is the right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed.”

“There is no dispute as to the facts in this case and no room for conflicting inferences so that the court can say as a matter of law that the doctrine of respondeat superior does not here apply.”

[371]

DOOLING, J.

This appeal is presented on a settled statement from an order of the superior court granting the motion of respondent cross-defendant United Air Lines for a judgment of nonsuit on a cross-complaint brought by appellant cross-complainant Union Oil Company.

The action out of which the present appeal arises was begun on December 31, 1951, when plaintiff Hector J. McVicar filed a complaint against defendants Union Oil Company, R E. Arant, United Air Lines, and Samuel R Schreekendgust. On February 25, 1952, appellant Union Oil Company (a defendant in that action) filed a cross-complaint against Schreekendgust, United Air Lines, Hector J. McViear, Walton N. Moore Dry Goods Company, Inc., and others.

It appears that a three-vehicle accident occurred November 29, 1951. Hector J. McViear was the driver of one automobile ; Samuel R Schreekendgust was the driver of another vehicle; and R. E. Arant was the driver of an oil truck belonging to appellant Union Oil Company. Schreekendgust was in the general employ of respondent United Air Lines at the time.

The action was tried before a jury. After all the evidence was in and all the parties had rested respondent United Air Lines moved for a judgment of nonsuit on the cross-complaint against appellant cross-complainant Union Oil Company on the ground that there was no evidence from which the jury could find that at the time and place of the accident Schreekendgust was an employee of United in the course and scope of his employment. The court granted the motion on that ground.

The trial resulted in a judgment for plaintiff McViear against defendant Schreekendgust in the sum of $16,170 and in favor of defendants Union Oil Company and Arant. On the cross-complaint judgment was entered for appellant cross-complainant Union Oil Company against cross-defendant Schreekendgust in the sum of $8,697.99 and in favor of cross-defendants McViear and Walton N. Moore Dry Goods Company (the employer of McViear).

It is appellant’s position on this appeal that it was error for the trial court to determine as a matter of law that at the time and place of the accident Schreekendgust was not an employee of respondent United Air Lines in the course and scope of his employment. It maintains the question of scope of employment was one for the jury in this case.

McVicar v. Union Oil Co.

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DOOLING, J.

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