RICHARDS v. METROPOLITAN LIFE INS CO ET AL (1941)

Plaintiff appeals from a judgment of nonsuit granted the Metropolitan Life Insurance Company on the ground that the evidence was insufficient to establish the employer–employee relationship between the corporation and one Lehman, its collector and solicitor.

On March 17, 1937, defendant Lehman was, and had been for one and one–half years, in the employ of the Metropolitan Life Insurance Company; he solicited insurance and collected insurance premiums upon insurance policies and delivered said premiums to the company at its office in the city of Los Angeles. On the date mentioned plaintiff's daughter, Altier Richards, while riding as a guest in another automobile, was injured in a collision when the car driven by Lehman collided with the automobile in which she was riding. The injuries she received later caused her death.

On the morning in question Lehman was accompanied by Rose Starr, a young woman who lived at the same address as that of Lehman. He had conveyed her to the city daily for some five weeks prior to the date mentioned. She worked on Venice boulevard, about fifteen blocks south of the office of defendant company at 315 South Broadway. It was her habit usually to leave Lehman's car at Third and Hill street, which is about one block from the Broadway address. It was their mutual intention that she should do so on the day of the accident.

On that day Lehman had made no calls in the service of the company. Prior to the accident he had neither sought nor acquired any applications for policies nor had he collected any money due the company. His immediate destination was the company's office to report, attend a daily meeting of the agents and deliver premiums collected during the two preceding days. He used his own car in making collections for the company and in going to the office of the company. His contract required him to make a daily report and payment of all collections. Ordinarily he deposited his collections the morning after they were made but occasionally he carried some of the company's money around for a day or so along with applications for policies. His duties required him to attend daily meetings at the office in the morning.

Upon the foregoing facts, the court granted the company's motion for a nonsuit.

Plaintiff contends that there was substantial evidence that Lehman as an employee was acting within the scope of his employment at the time of the accident; that at that very time he was on his way to deliver the premiums which he had collected and to attend a meeting of the employees; that he was in the continuous employ of the company by the terms of his employment; and that he was required to attend daily meetings of employees to receive his instructions; that he was guaranteed a minimum salary.

In support of this contention, plaintiff recited certain provisions of the book of instructions governing such employee's conduct which provisions required the prompt collection of premiums and the prompt payment of moneys collected and which also required daily reports of such collections. It appears from Lehman's testimony that as an agent for the company, he was given a certain territory within the city of Los Angeles within which he made collections, but such labors took him into various sections of the city.

On the morning of the accident, he had with him all of the premiums which he had collected for a day or two prior to the accident and he was on his way to turn it over to the company. It was customary for him to use his automobile in all of his work for the company.

It has been declared that the test of whether an employee is acting within the scope of his employment at a particular time is whether the act was done in the prosecution of the business which he was employed to do. Chamberlain v. Southern Cal. Edison Co., 167 Cal. 500, 140 P. 25. Measured strictly by the language of that test, it may be said that any act of the employee which contributes ultimately, in the slightest degree to the advancement of the employer's business may be considered as an act done in the prosecution of the business. This is true even of the employee's diet, and of his time and place of eating; of his social relations, and of the hours of his vespers and orisons. But we are not bound by such strict rule of construction. The fact that an employee travels by his own motor car instead of by a street car to the employer's place of business does not establish that he is within the course of his employment the moment he leaves his home. The line of distinction appears to be finely drawn between those cases where an employee acts within the scope of his employment and where he was beyond that scope. A study of the authorities and a close inspection of the nature of Lehman's services force upon us the conclusion that at the time of his accident he was acting outside the scope of his employment.

Where an employee used his employer's automobile in selling labels and took the machine from the garage to his work, his employer was not liable for injuries caused by the act of the employee while driving such automobile on his way to the employer's office. Nussbaum v. Traung Label Co., 46 Cal.App. 561, 189 P. 728. Where the operator of a service station suffered an automobile collision while driving from the bank with the moneys he delivered to the branch office of the corporation, the company was not liable merely because of the employee's possession of the money. He had deviated from his course between the bank and the district office to serve a friend. Gordoy v. Flaherty, 9 Cal.2d 716, 72 P.2d 538. Where an employee of a store was required to make a daily report by depositing it in the mail near his branch store, addressed to the district office, and, instead of posting the report at the close of the day, left his home early the next morning and stopped to leave it at the main store, his employer was not liable for injuries caused by the employee after leaving the main store and before he reached his destination. He was not acting within the scope of his employment at the time. Humphry v. Safeway Stores, Inc., 4 Cal.App.2d 589, 41 P.2d 208. After a collecting and soliciting agent had been engaged during the morning on business of the company to within a few minutes of the accident, and collided with another car on his way home to lunch, the employer was not liable because the agent was not, at the time of the collision, performing a service for the employer. Martinelli v. Stabnau, 11 Cal.App.2d 38, 52 P.2d 956.

Where two employees used the automobile of their employer in installing signs and had no fixed hours or place of employment their employer was not liable for injuries which they caused plaintiff, while driving from their home to the city to get their evening meal, which was paid for by the employer. Kish v. California State Auto. Ass'n, 190 Cal. 246, 212 P. 27. Where a motorcycle messenger furnished, fueled and operated his own machine and kept it at his own home and rendered services from 8 a. m. to 6 p. m. and at the time of his accident was on his way from his home to the office and was traveling under no restrictions as to the mode or direction of travel, the employer was not liable for plaintiff's injuries suffered in a collision with such motorcycle. Postal Tel. Cable Co. v. Industrial Acc. Comm., 1 Cal.2d 730, 37 P.2d 441, 96 A.L.R. 460. Where a delivery boy on his way to work used a sidecar motorcycle in making his deliveries but furnished his own gasoline and maintained his motorcycle and chose any route he pleased from the time he left his employer's premises until the following morning, his employer was not liable although the boy had delivered some merchandise to a friend on the way to work. Holopoff v. Industrial Acc. Comm., 131 Cal.App. 554, 21 P.2d 649. Where a collector, whose hours were from 8 a.m. to 5 p. m. used his own automobile to make collections, and was not required to report at the office of his employer at the close of the day but might report his collections on the following morning, his employer was not liable for plaintiff's injuries caused by a collision with the collector's car while driving on his way to work with money collected the day before in his possession. That collector was proceeding to his employer's place of business, first to return the collection slip of the preceding day, to report and deposit his collections and to secure new slips for the work ahead of him. Nagy v. Kangesser, 32 Ohio App. 527, 168 N.E. 517.

Appellant cites two authorities which have persuasive elements but which may be distinguished. In the case of Dillon v. Prudential Insurance Company of America, 75 Cal.App. 266, 242 P. 736, the agent McDonald worked from 8 a. m. until 4 p. m. in making collections under a contract of employment similar to that between Lehman and defendant company. But he had gone from his home to the district within which he performed his work––comprised of 200 square miles, and while he was in the midst of his clientele, it became necessary for him to leave the “area” of his operations in order to drive to the office of the company to attend a meeting at 9:30 o'clock in the morning. At the time of his accident, McDonald had in his possession policies aggregating $40,000 worth of insurance to be delivered to policyholders. His attempt to leave his district to attend a meeting at the company's office places him definitely in the class of an employee performing a service at the time of his collision. The case of Cain v. Marquez, 31 Cal.App.2d 430, 88 P.2d 200, 204, is likewise distinguishable. In that case the employee who acted in the general capacity of mechanic, bookkeeper, collector and solicitor, was on his way to his employer's shop to obtain a micrometer and other tools to be used by the employee at the shop on the same evening. There was no purpose or intention on his part to cease the pursuit of his master's business. It is there said: “If, at the time of his trip, the servant combines some purpose of serving the master with the trip to obtain food, it would be an invasion of the province of the jury to hold as a matter of law that the scope of his employment is broken.” It was further held that in order to exonerate the master, it is essential that the deviation from his mission to serve his master must be for purposes entirely personal to the servant and that a deviation would be required as a matter of law if the servant combined “his own business with that of the master or attends to both at substantially the same time,” citing Kruse v. White Bros., 81 Cal.App. 86, 253 P. 178; Brimberry v. Dudfield Lumber Co., 183 Cal. 454, 191 P. 894. The case of Fenton v. Ind. Acc. Comm., 44 Cal.App.2d 379, 112 P.2d 763, 765, is not in point, an employee of the California State Relief Administration had been assigned on Saturday to investigate several cases before returning to the office the following Monday. He was killed Monday morning while en route to the first home on which he was to call. It was there held that an “employee should be regarded as having been injured in the course of his employment * * * when the accident occurs while he is going to or coming from his work, either on his own time or on that of his employer, if he is then engaged in some substantial mission, growing out of his employment, which has been assigned to him by the employer.”

From the evidence before us, it appears that Lehman had not resumed that portion of his labors whereby he would have been in the service of defendant. He was still moving within the orbit of his own personal freedom, serving himself by traveling the mode and route of his choice and in a manner to suit his own convenience. He was not in the performance of an act for the benefit of the defendant company. The mere possession of moneys collected by him on previous days was an incident remote from the performance of the tasks which would later have made his acts a part of his duty to the company. The possession of the money on that day was incidental only to the main purpose of reaching the office of the company in order to begin the work of the day.

The judgment is affirmed.

MOORE, Presiding Justice.

We concur: WOOD, J.; McCOMB, J.