Latin. “Let the superior make answer.”

Torts.  In the law of torts, the doctrine of respondeat superior provides that an employer/principal is vicariously liable for the wrongful acts of his employee/agent committed within the scope of the employment/agency.

Reference Desk:

California Civil Code § 2338

Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.

Fernelius v. Pierce, 22 Cal.2d 226 (1943)

Under the rule of respondeat superior, as ordinarily understood, the master is held liable for the torts of his servants committed within the course of their employment. In the typical case the neglect is only that of the servant; the master is himself without fault. But because the servant is engaged in the master’s work and is doing it in place of, or for, the master, the act of the servant is regarded as the act of the master. Responsibility devolves up through the relationship to the master and the question of proximate cause of the injury relates only to the act (or neglect) of the servant.

Warshauer v. Bauer Construction Co., 179 Cal.App.2d 44 (1960)

The justice of holding the principal responsible even though he may be innocent of any wrongdoing himself, is apparent when we consider that the principal is in a position to investigate and secure scrupulous agents, and if advisable, to bond them against the possibility of loss to those who are in no position to protect themselves.

Luckie v. Diamond Coal Co., 41 Cal.App. 468 (1919)

[T]he doctrine of respondeat superior applies only where the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged with the result of the wrong, at the time and in respect to the very transaction out of which the injury arises.

Atchison, Topeka Santa Fe R.R. Co. v. Flintkote, 256 Cal.App.2d 764 (1967)

It is well-established that the most important factor in determining whether an individual is an employee or an independent contractor is the right to control the manner and means of accomplishing the result desired.

DeMirjian v. Ideal Heating Corp., 129 Cal.App.2d 758 (1954)

Under the doctrine of respondeat superior, an employer is liable for injury to the property of another proximately resulting from the negligent act of his employee done within the course of his employment. An employer is responsible not only for the negligent act of his employee done within the course of his employment, but also for the wrongful act of his employee committed in and as a part of the transaction of the business of the employer. (Civ. Code, § 2338Johnsonv. Monson, 183 Cal. 149, 152 [190 P. 635]; Otis Elevator Co. v. First Nat. Bank, 163 Cal. 31, 39 [124 P. 704, 41 L.R.A.N.S. 529].)

The definitive limits of the phrase “in the course of employment” are uncertain. The determination of what conduct of an employee is within the course of his employment is largely dependent on the facts and circumstances of the particular case. As a general rule whatever is done by the employee in virtue of his employment and in furtherance of its ends is deemed by the law to be an act done within the course of his employment; and in determining whether the employee’s conduct was within the course of his employment, it is proper to inquire whether he was at the time engaged in serving his employer.  It is not necessary that the employee should have authority to do the particular act which resulted in the injury complained of. (57 C.J.S. 303, § 570d(2).)

Acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal to himself and not acts of service, do not take him outside the course of his employment.  Cessation of work for eating, drinking, warming himself, and similar necessities are necessary incidents of employment. In these and other conceivable instances the employee ministers unto himself, but in a sense these acts contribute to the furtherance of his work. “That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries occasioned by them are accidents resulting from the employment.” (Archibald v. Ott, 77 W. Va. 448 [87 S.E. 791, 793, L.R.A. 1916D 1013]; Adams v. American President Lines, 23 Cal.2d 681, 685 [146 P.2d 1]; Elliott v. Industrial Acc. Com., 21 Cal.2d 281 [131 P.2d 521, 144 A.L.R. 358]; Brunk v Hamilton-Brown Shoe Co.,334 Mo. 517 [66 S.W.2d 903]; 57 C.J.S. 308, § 570d(3).)

A mere deviation by an employee from the strict course of his duty does not release his employer from liability. An employee does not cease to be acting within the course of his employment because of an incidental personal act, or by slight deflections for a personal or private purpose, if his main purpose is still to carry on the business of his employer. Such deviations which do not amount to a turning aside completely from the employer’s business, so as to be inconsistent with its pursuit, are often reasonably expected and the employer’s assent may be fairly assumed. In many instances they are the mingling of a personal purpose with the pursuit of the employer’s business. In order to release an employer from liability, the deviation must be so material or substantial as to amount to an entire departure. (Westberg v. Willde, 14 Cal.2d 360, 372-373 [94 P.2d 590].)  “[W]here the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly or indirectly could he have been serving his employer.” (Lockheed Aircraft Corp. v. Industrial Acc. Com., 28 Cal.2d 756, 758-759 [172 P.2d 1].) [15] An employee may be acting in the course of his employment even though the act done be a violation of some rule or instruction of the employer. (See Associated Indem. Corp. v Industrial Acc. Com., 18 Cal.2d 40, 47 [112 P.2d 615]; and cases collected 23 A.L.R. 1161, 26 A.L.R. 166, 58 A.L.R. 197, 83 A.L.R. 1211, 119 A.L.R. 1409.) An employee takes with him his human frailties as well as his virtues when he goes to work. (Se Pacific Emp. Ins. Co. v. Industrial Acc. Com., 26 Cal.2d 286 [158 P.2d 9, 159 A.L.R. 313].)

Dolinar v. Pedone, 63 Cal.App.2d 169 [146 P.2d 237], says (p. 175) that “mere deviation by an employee from a strict course of duty does not release the master from liability. In order to have such an effect the deviation must be shown substantially to amount to an entire departure.”

Hiroshima v. Pacific Gas Elec. Co., 18 Cal.App.2d 24 [63 P.2d 340], held that the defendant’s employee was acting in the course of his employment where, while in the act of writing a receipt for a check given by the plaintiff in payment of a bill for electricity, he began a quarrel with the plaintiff and immediately followed it up by an assault on the plaintiff. In that case the court said that acting within the general scope of his employment means while on duty. Hiroshima has been quoted or referred to with approval in the cases set out in the margin.[1]

In Carr v. Wm. C. Crowell Co., 28 Cal.2d 652 [171 P.2d 5], an employee of a general contractor threw a hammer at an employee of a subcontractor, striking him on the head and seriously injuring him. He sued the general contractor and his employee. The trial court granted a motion for a directed verdict as to the general contractor. The plaintiff appealed. On appeal the general contractor contended that his employee was not acting in the course of his employment when he injured the plaintiff, on the ground that the throwing of the hammer did not further the employer’s interests as an employer and that his employee could not have intended by his conduct to further such interests. Reversing, the court declared (p. 654): “It is sufficient, however, if the injury resulted from a dispute arising out of the employment. Under the provisions of section 2338 of the Civil Code a principal is liable for `wrongful acts’ of his agent committed `in and as a part of’ the principal’s business. `It is not necessary that the assault should have been made “as a means, or for the purpose of performing the work he (the employee) was employed to do.”‘ . . . The employer’s responsibility for the tortious conduct of his employee `extends far beyond his actual or possible control over the conduct of the servant. It rests on the broader ground that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others’ while acting in the scope of their employment. [Citations.] Such injuries are one of the risks of the enterprise. [Citations.] In the present case, defendant’s enterprise required an association of employees with third parties, attended by the risk that someone might be injured. `The risk of such associations and conditions were risks of the employment.’ [Citation.] Such associations `include the faults and derelictions of human beings as well as their virtues and obediences. Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional makeup. In bringing men together, work brings these qualities together, causes friction between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup. Work could not go on if men became automatons repressed in every natural expression. . . . These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.’” In support of the last statement the court cited among other cases, Hartford Acc. Indem. Co. v. Cardillo, 112 F.2d 11, 15 [72 App. D.C. 52], a case involving an issue under the Longshoremen’s Harbor Workers’ Compensation Act, and Pacific Emp. Ins. Co. v Industrial Acc. Com., 26 Cal.2d 286, 291 [158 P.2d 9, 159 A.L.R. 313], a case which arose under the Workmen’s Compensation Law.

Fields v. Sanders, 29 Cal.2d 834 [180 P.2d 684, 172 A.L.R. 525], was an action against an employee and his employer for damages for an assault committed on the plaintiff by the employee, following an altercation as to whether the employer’s truck, driven by the employee, had struck the plaintiff’s automobile. The employee hit the plaintiff with a wrench. The court held, as a matter of law, that the employee was acting in the course of his employment, saying in part (p. 842): “Nor is it of any consequence that `the employer here could not expect that the wrench would be used [by Sanders] as a club’ to beat plaintiff.” (See also the following cases in which it was held that the employee was acting in the course of his employment:Haworth v. Elliott, 67 Cal.App.2d 77 [153 P.2d 804], party injured when he was ejected by defendant’s bartender; Andrews
v. Seidner, 49 Cal.App.2d 427 [121 P.2d 863], party assaulted because he refused to pay for some drinks; Stansell v. Safeway Stores, Inc., 44 Cal.App.2d 822 [113 P.2d 264], customer assaulted by store manager; Kruse v. White Brothers, 81 Cal.App. 86 [253 P. 178], deviated from the direct route to take girl friend home; United States v. Wibye, 9 Cir., 191 F.2d 181, digressed from normal route so he could see his mother.)

Defendant cites Feeney v. Standard Oil Co., 58 Cal.App. 587 [209 P. 85], and Yore v. Pacific Gas Elec. Co., 99 Cal.App. 81 [277 P. 878], for the rule that smoking by an employee is not within the course of his employment. The dicta in the Feeney case, and the Yore case which relied principally on the dicta in the Feeney case, were overruled in George v. Bekins Van Storage Co.,33 Cal.2d 834 [205 P.2d 1037]. (See 57 C.J.S. 334, § 575b and cases cited.)

As indicated in Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652 [171 P.2d 5], cases arising under the Workmen’s Compensation Law are of assistance in determining the limits of the phrase “in the course of employment.” Speaking of the phrase “in the course of employment” in workmen’s compensation acts, Dean Prosser says, “The considerations which determine the `course of employment’ are much the same as in the case of the vicarious liability of the employer for the torts of his servant.” (Prosser on Torts, 529, § 69.)

In Whiting-Mead Commercial Co. v. Industrial Acc. Com., 178 Cal. 505 [173 P. 1105, 5 A.L.R. 1518], the court declared that the use of tobacco should be placed on the “list of ministrations to the comfort of the employed” and that an “employer must expect the employed to resort to the use of tobacco as a necessary adjunct to the discharge of his employment.” In that case, a workman during the course of his employment ran a nail into the palm of his right hand and had the wound bandaged. He continued to work. Twice during the day the bandage was soaked with turpentine by an agent of the company in an endeavor to alleviate the pain. Soon after the second application the employee temporarily ceased his labor and struck a match for the purpose of lighting a cigarette. The saturated bandage was ignited by the match and the hand was seriously burned. The court held the injury arose in the course of the employment. Whiting-Mead has been cited with approval in many cases. (Adams v. American President Lines, 23 Cal.2d 681, 685 [146 P.2d 1]; Pacific Emp. Ins. Co. v. Industrial Acc. Com., 26 Cal.2d 286, 293 [158 P.2d 9, 159 A.L.R. 313]; Goodrich v. Industrial Acc. Com., 22 Cal.2d 604, 608 [140 P.2d 405]; Elliott v. Industrial Acc. Com., 21 Cal.2d 281, 282 [131 P.2d 521, 144 A.L.R. 358]; see also anno.: 5 A.L.R. 1521.) An employee was held acting in the course of his employment when matches carried in his pocket ignited from collision with a partition in the employer’s washroom. (Steel Sales Corp. v. Industrial Com., 293 Ill. 435 [127 N.E. 698, 14 A.L.R. 274].)

In State Comp. Ins. Fund v. Industrial Acc. Com., 38 Cal.2d 659 [242 P.2d 311], an employee, who was the aggressor, was injured in a fight with his foreman while they were at work. The court stated (p. 661), “There is no doubt that the injury occurred in the course of the employment, for that has reference ordinarily to time and place. Hull [the aggressor] has satisfied both aspects,” and cited with approval and quoted at length fro Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652, and cite Fields v. Sanders, supra, 29 Cal.2d 834, with approval.

The employee was held to have been acting in the course of his employment under the conditions described in the following cases: Flight instructor took his daughter on an “orientation ride,”Phoenix Indem. Co. v. Industrial Acc. Com., 31 Cal.2d 856 [193 P.2d 745]; deviated from his usual route to look for a restaurant, Lockheed Aircraft Corp. v. Industrial Acc. Com., 28 Cal.2d 756 [172 P.2d 1]; malpractice of insurance carrier’s physician after employee injured while at work, Heaton v Kerlan,27 Cal.2d 716 [166 P.2d 857]; stopped to bathe in employer’s irrigation reservoir, Pacific Indem. Co. v Industrial Acc. Com., 26 Cal.2d 509 [159 P.2d 625]; driving home to tell his wife he would be working that night and to phone from there about a tool, Goodrich v. Industrial Acc. Com., 22 Cal.2d 604 [140 P.2d 405]; upon returning to place of work, caught her heel in the hem of her dress on alighting from automobile, fell and broke her wrist, California Cas. Indem. Exch. v. Industrial Acc. Com., 21 Cal.2d 751 [135 P.2d 158]; going into hallway to obtain fresh air, F.W. Woolworth Co.Industrial Acc. Com., 17 Cal.2d 634 [111 P.2d 313]; told to go to another plant, stopped for coffee at a coffee shop, went back to obtain an overcoat, struck by automobile on way, Leffert v Industrial Acc. Com., 219 Cal. 710 [28 P.2d 911]; messenger went home to procure his raincoat, and on his way back to the office was injured, Western Pac. R.R. Co. v. Industrial Acc. Com., 193 Cal. 413 [224 P. 754]; resting in the shade from the sun on way to another part of employer’s premises, Brooklyn Min. Co. v. Industrial Acc. Com., 172 Cal. 774 [159 P. 162]; assaulted another automobile driver, Pritchard v. Gilbert, 107 Cal.App.2d 1 [236 P.2d 412]; drank carbon tetrachloride from a bottle believing it contained whiskey at a party on the day before Christmas, Satchell v. Industrial Acc. Com., 94 Cal.App.2d 473
[210 P.2d 867]; to prove that a solvent was not inflammable, soaked a rag with it and set fire thereto, Joshua Hendy Iron Works v. Industrial Acc. Com., 74 Cal.App.2d 191
[168 P.2d 203]; bartender assaulted a customer while ejecting him, Gardner v. Industrial Acc. Com., 73 Cal.App.2d 361 [166 P.2d 362]; after checking out from his work, he fell when he turned away from the window in picking up a government bond purchased by means of a wagewithholding plan, Bethlehem Steel Co. v. Industrial Acc. Com., 70 Cal.App.2d 382 [161 P.2d 59]; domestic servant injured herself when she fell from a stool in the process of sewing a hem on her dress, Employers’ etc. Corp. v. Industrial Acc. Com.,37 Cal.App.2d 567 [99 P.2d 1089]; drove a prospective customer to see some property and stopped for lunch after prescribed hours, Griffin v Industrial Acc. Com., 19 Cal.App.2d 727 [66 P.2d 176]; after lighting a cigarette, dropped a match on spilled gasoline Torosian v. Industrial Acc. Com., 11 Cal.App.2d 204 [53 P.2d 384]; went to obtain water to revive a fellow employee who had fainted, County of Los Angeles v. Industrial Acc. Com., 89 Cal.App. 736 [265 P. 362]; going to another part of employer’s premises to visit a fellow worker, Twin Peaks Canning Co.Industrial Com., 57 Utah 589 [196 P. 853, 20 A.L.R. 872].

Whether an employee was acting in the course of his employment at the time of the accident is generally a question of fact to be determined in light of the circumstances of the particular case. (Lockheed Aircraft Corp. v. Industrial Acc. Com., 28 Cal.2d 756, 758 [172 P.2d 1]; Loper v. Morrison, 23 Cal.2d 600, 607 [145 P.2d 1]; California Cas. Indem. Exch. v Industrial Acc. Com., 21 Cal.2d 751, 760 [135 P.2d 158Industrial Indem. Co. v. Industrial Acc. Com., 108 Cal.App.2d 632, 635 [239 P.2d 477]; McChristian v. Popkin, 75 Cal.App.2d 249, 255 [171 P.2d 85]; Cain v. Marquez, 31 Cal.App.2d 430, 434 [88 P.2d 200]; Torosian v. Industrial Acc. Com., supra, 11 Cal.App.2d 204, 207; Gammon v. Wales, 115 Cal.App. 133, 137 [300 P. 988]; Kruse v. White Brothers, 81 Cal.App. 86, 94 [253 P. 178].) [17] Whether an employee’s deviation from his course of duty was so material or substantial as to constitute a complete departure is usually a question of fact. (Dolinar v. Pedone, 63 Cal.App.2d 169, 175 [146 P.2d 237].)

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