*1 Dist., 46159. Div. One. No. Second July 1976.] [Civ. KELLY, v. Appellant,
MARION L. Plaintiff and BUREAU, INC.,
TRANS GLOBE TRAVEL
Defendant and Respondent.
Counsel Edward L.
Oliver, H. Sloan, & Lowen Shaffer Stanley, Lindvig, Vargas, for Plaintiff and Gilman Lascher, Wilner and Richard C. C. Wendy Appellant. Iorillo, Peckham, Estes, Lawler & Mario A. Iorillo
Stockdale, Ramsey, for Defendant M. Clinton Respondent. Hodges Opinion
THOMPSON, J. The matter at is an from a bench judgment appeal in a It issue of for defendant action. involves novel personal injury of a iri a workers’ collateral estoppel finding compensa consequences that an in the tion employee engaged proceeding later civil action in which third when to a party injured, the1 vicarious as the worker asserts in the same occurrence injured *4 also, involves, of the The propriety . appeal liability employer. in a fashion voir dire of seeking jurors judge-conducted prospective facts of the in the application hypothetical preinstruct jurors prospective instruction to a the of of law and entitlement jury plaintiff to principles return where the of his of an return employment scope agent defining in the crucial factual issue deviation is the after of employment scope case.
We conclude: of within of in a (1) findings injury scope employment workers’ do not the compensation proceeding collaterally estop employer from the issue of of where that issue is litigating scope employment relevant to the claim a third who of asserts that the party employer liable for a tort of the (2) method of voir dire vicariously employee; the trial (3) the trial court employed by judge erroneously improper; refused instruction return to the of plaintiff’s proposed defining scope and the errors of the trial court in voir dire (4) employment; jury are, combination, refusal of the We therefore prejudicial. reverse the judgment. in which she was when the car in an automobile accident
Injured Howard J. driven was struck one by admittedly negligently riding Williams, and his sued Williams Marion J. employer Kelly plaintiff Bureau, Inc., that because Williams Globe Travel Trans claiming the accident the time of at of his within employment scope acting of tort.1 liable for his Globe was negligence Trans vicariously trial to the admitted, tendered issues been Williams only having within Williams was and whether acting of were amount court damage of employment. scope He is not a to this appeal. 1 Another rider also sued. party The trial an extended Trial was to conducted jury. judge personal essence, voir dire of In examination of jurors. panel prospective from individual on a series of sought opinion jurors prospective with hypothetical questions dealing scope employment proximate cause much in the that a law a first manner school instructor teaching class in the Socratic method. year agency might employ None of the dealt with the issue of return hypothetical to the questions deviation, after a scope deviation although subject itself was covered. When counsel for the asked that a plaintiff hypotheti- cal situation return to be involving scope presented, trial that he would inform the that “under this set judge responded of facts there be a return from a deviation.” The told the may judge that if “the deviation had ended . . . the Williams panel employee had in fact returned to the of his he was scope employment, doing things the benefit of his it was within the of his employer, instructions, he was the duties employment, employer’s following accident, to him at the time of the under then those circum- assigned stances would Queried be employer responsible.” prospective whether into the of his do juror [s/c], “By coming employer you *5 mean he’s back to his of or he has come to a gone place and then back?” the “I can’t make the point facts gone judge replied, up for I can’t at this must find that the returned you. say point you employee to his of This is from scope all the employment. your responsibility facts.” trial,
At the evidence on the issue of of was conflicting.
That the Williams was showed favoring plaintiff’s position following. Trans Globe to an which he was employed by pursuant arrangement to use his own automobile and was required Toyota paid mileage plus His of a man. duties those hourly delivery compensation. encompassed 24, 1973, at At about 12 noon on for work Williams January reported to and Irvine office of Trans Globe. He was to deliver tickets instructed a and then to to the Sierra collect check from an office in Santa Ana go a and then he to book Madre office of Trans Globe where was pick up airline tickets to return where he was to deliver to Orange County check, customer, Globe’s return it to Trans Trans Globe collect a Irvine office.
200 made Santa Ana 1 He his the Irvine office at about left
Williams p.m. the book. He where he to Sierra Madre call and up picked proceeded it, While route back to had his seeking Orange County. difficulty finding stalled van. whom he drove the hitchhiker’s he a hitchhiker up picked started, the hitchhiker to the Williams drove When van could not be 5 for a time. Sometime before where the two latter’s home p.m., stayed but became lost his return Williams 'commenced County trip Orange At 5 to the Pasadena about for the confused Freeway. looking entry of Foothill Boulevard ran red at the intersection Williáms light p.m., He in turn a left lane northbound and Sierra Madre Boulevard. stopped him red A behind with on Altadena Avenue. car light pulled up police fled veered from horn Williams activated and right sounding. than miles hour. While more at per high reaching police speed was with the car which Williams collided plaintiff riding, fleeing, which sued. causing plaintiff injury attributed defense evidence consisted of a controverted statement that at the time of the accident was on his to see Williams girl way
friend in Ontario. trial, of filed course the Court its of Appeal opinion
During Bd. (1974) Williams v. Workmen’s Comp. [116 Appeals in which it held that for the of workers’ Cal.Rptr. purpose 607] Williams in the benefits compensation engaged performance Plaintiff for a directed verdict duties at the time of the accident. moved on the issue of Trans Globe’s Court Appeal liability, arguing final, not Trans then Globe from collaterally opinion, yet estopped the issue whether Williams within the contesting acting *6 at his the time of the accident. The trial court denied the employment motion. of Williams court the the
The trial instructed negligence jury within the Trans if Williams was should be Globe acting imputed In BAJI terms of of his at time of accident. scope employment 13.01, “. within the of his No. it instructed that: . . conduct is scope in the duties which he ... if it while is occurs authority agent engaged further and relates to those duties.” The court was perform employed “. . an or in BAJI 13.02: . when told the terms of No. agent departs jury, and his or service of .deviates from business principal, substantially and his not not for some reasonably object principal activity pursues is not embraced within his responsible principal employment, employment The activity or deviation. done ... in such anything scope leaves the of employee from the time the suspended relationship he returns.” until his by borrowed an instruction offered court refused plaintiff
The trial (1939) 430, P.2d 200], [88 Cain v. from Marquez stating: “Where Agency Second of 237 of the Restatement section service, principal again principal’s agent temporarily abandons duties, and the agent when resumes his agent’s becomes liable for acts attitude, there re-entry merely by agent’s is not affected mental but must space attitude with a connection in time and coupled be that reasonable engaged.” with the work in which he should be judge deliberating, it to the trial which jury sent note
While law re-read that would or any portion “Would like to have states: might (Underscoring in 1. deviation 2. Intention” cover: Substantial that it had not instructed on the original.) responded The trial court which did not subject prior of intention. It then reread its instructions employment after a return requirements scope define the deviation from it. in plaintiff against returned Williams and favor its verdict for it, judgment followed. In appeal resulting Trans Globe. This from the (1) treating erred in not the decision in
appellant contends: the trial court that Williams compensation the workers’ case as conclusive of .issue (2) prejudicial- the court acting employment; within the of his (3) ly erred in its voir the court erred jury; prejudicially dire of refusing plaintiff’s defining return to after a deviation.
Collateral Estoppel may, subsequent party prior litigation A person who was final determi bound adverse litigation opponent, with a different be of collateral of the rule case reason prior nations of issues in the *7 (1942) 807, Cal.2d 19 v. Bank estoppel. (Bernhard America 810-813 of 892].) Compensation the adjudication by P.2d An [122 Workers’ application of the may the basis for Appeals Board is one which be (res (1953) P.2d [254 26] 40 Cal.2d 477 v. Rishell doctrine. (French judicata).)
202 inflexible,
However, not collateral is an universally estoppel applicable Rather, limit its use where the considerations” may principle. “policy the are on of doctrine limitation outweighed relitigation underpinnings 646, 247 650 (1967) other v. (O’Connor O’Leary factors. by 52, 54 v. 25 Seltzer 1]; (1972) Cal.App.3d Supp. [101 Cal.Rptr. People [56 dictate that reasons of Here 260].) significant policy Cal.Rptr. not be collateral estoppel applied. in workers’ to the
A trial not available the is employer jury in that If a of of case. determination compensation the is from deemed collaterally denying proceeding estop employer it as a third a basis for of when asserts person the vicarious is denied his California liability employer, employer I, to a trial on a issue which (art. 7) constitutional on his § right juiy key turns.2 Theatres v. Westover U.S. (See (1959) Beacon liability [3 988, 79 948].) L.Ed.2d S.Ct. it means unmixed where is
Collateral is no by blessing estoppel in to bind a a future litigation party proceeding potentially applicable with the of collateral the Then changes estoppel nonparties. possibility a in which the of economic balance by creating controversy litigation than much the the of loss to one is greater gain party possible potential of result of collateral the other. A defendant the fearing consequences in with be forced to in future others may spend litigation proceedings immediate all to the amount in defense sums out question. proportion review at trial and on He is to take steps appellate required procedural economics involved. that otherwise would not be taken because the the that the meet those adversary requires plaintiff Inevitably, system end, own In the collateral actions take his to counter them. the does, can, in and sometimes result estoppel possibility expense that in threatens to exhaust amount immediate controversy. litigation The adverse effect of of collateral potential estoppel upon of civil economic balance is undesirable litigation particularly com- of the workers’ workers’ compensation proceedings. policy and, law where certain is to secure possible, pensation quick Rishell, workers’ prior compensation 2 French v. Cal.2d holds supra, fireman attack in the course his employment determination suffered heart city of a later mandate action determined issue for conclusively purpose disability. for a work-related rights fireman establish against city pension it res from the case at bench because involves judicata French is not distinguished only that a trial not available rather than collateral but also the fact estoppel, mandate. *8 resolution of of doctrine which questions coverage. Any encourages in final resolution the of exercise delay by procedural appellate steps law, counter to the The is workers’ stark policy. compensation to the contrast of other is one of system personal injury litigation, to reduce the call of the societal simplified procedure legal expense upon fund available for for so that the maximum compensation injury possible of the fund is available to loss rather than the cost of portion compensate controversies, The of collateral conse- determining possibility estoppel of a its effect workers’ determination with compensation upon quences economic is the balance counter to that also. pdlicy controversy sum, In the the effect the trial and adverse upon right jury to the workers’ itself consequences compensation proceeding outweigh benefit of collateral between a estoppel avoiding relitigation party workers’ and a compensation proceeding nonparty. We thus conclude that the trial court denied correctly plaintiff’s for motion directed verdict on the issue of vicarious liability. Dire Voir
Jury of voir dire of a is that of primary purpose jury panel selection of a fair and It of consists examination of impartial jury. to determine if there is a for prospective jurors ground challenge Witkin, cause. Trial, (4 Cal. Procedure (2d ed.), Here the 111.) § voir dire conducted trial went far Had by judge beyond purpose. counsel, the same been asked would have constituted questions they indoctrinate its grossly improper attempts precondition id., Witkin, determination of (4 114.) facts. §
While the trial not jurors judge preinstruction prospective if the is fair and erroneous and in fact be desirable may preinstruction and, can some- accurate while conceivably process preinstruction times be voir dire of utilized in context of judge prospective jurors, neither nor here fair Prospective jurors any complete. preinstruction on issues of were to Socratic examination employment subjected scope to the and deviation but were misled as to the legal principles applicable after a deviation. As determination of return to scope issue, told that Williams was were jurors acting prospective within of his if he “had in fact returned to the scope of his the benefit of employment, doing things it was within the of his employer, employment, employer’s *9 204
instructions, the duties to him at the time of he was following assigned statement accident. . . .” That stated the law. conjunctive erroneously context, it Williams within the of his In was enough place if, it, after deviation from he “was for the doing things employment absent instructions. benefit of his employer” specific employer dire Thus, in its conduct of voir examination of erred the trial court jurors. prospective Instruction Jury
Refused on the instructed A is entitled to jury fully completely party v. (1965) to it. (Hardin law to the facts Elvitsky applicable presented was denied an Here 748].) Cal.Rptr. plaintiff [42 if the was to be instruction her that was fully necessary jury proposed by to the factual issue informed of the of law key principles applicable is not a model While instruction proposed by plaintiff presented. should what an instruction on law of return to scope be, it the elements of intent and nevertheless encompassed spacial the ultimate determination. The temporal relationship govern instruction, while remainder unnecessary proposed proper law, statement of the is neither nor in"the context of incorrect misleading circumstances, the case at bench. In those trial court was obligated either to instruction or to it to eliminate the give proposed modify surplusage.
Prejudice error in error in voir dire and The combination of refusing jury dire, On voir by plaintiff prejudicial. proposed statement of the were an erroneous prospective jurors legal exposed to return to after a deviation. principles applicable omitted a salient The instructions themselves principle necessary of law to the evidence. The confusion is jury’s intelligent application its to the trial manifest unanswered question judge.
Disposition is reversed. judgment Lillie, J., P. Acting concurring.
HANSON, J. Dissenting. Concurring the trial court conclusion I in the concur opinion’s majority *10 on the of directed verdict issue motion for denied correctly plaintiff’s which was vicarious theory upon liability predicated within that Williams was Board Workers’ finding Compensation Appeals Trans of employer collaterally estopped that issue at the trial. Globe from relitigating
In addition to the which the bases its reasons policy upon majority issue, trial the instant conclusion as to this the record reflects that the in 8, However, filed a commenced on October 1974. Trans Globe case and therefore the with the California Court for hearing Supreme petition 1974, December did not become final until Court of decision Appeal the trial. well after the conclusion of from a law the of an
“Under California judgment pendency appeal is its as res judicata[1] appeal pending operation ‘’[citations] prevents dismissed, sooner satisfied. unless the is (Code until decided judgment Proc., 737, 39 1049.)” 748.) v. Herson (Wood (1974) Civ. § Cal.App.3d a did not enter abatement or Plaintiff-appellant plea request alone, this decision to become final. On this basis continuance permit the trial denied the motion for directed verdict. court properly rule of res that a final general judicata judgment prior operates as a conclusive as to all issues with to a adjudication only respect action; suit between the same on the same cause of subsequent parties of action or between where the second suit is on a different cause of collateral different it is conclusive under the doctrine estoppel parties, Stores, Louis Inc. v. as to issues (See actually litigated. Department only 749, 14, 57 757 Alcoholic Control Cal.2d (1962) Cal.Rptr. Beverage [22 626, 6 633 371 P.2d v. 758]; (1970) County Cal.App.3d Myers Orange 198].) Cal.Rptr. [86 Homes, v. 9 (1970) out in Eichler Inc. Anderson As the court points 224, is left to at 234 893]; “If 'anything page Cal.Rptr. Cal.App.3d [87 from or their privies of res precludes parties 1 In one the doctrine judicata aspect jurisdiction; a court of competent determined by a cause that has been finally relitigating decided in such necessarily as issue any known collateral estoppel, in a second aspect, if the issue is or their as to the privies determined parties is conclusively litigation whereas, action; the claim of different cause of lawsuit on a in a involved subsequent determination of prior with the conclusiveness is concerned collateral estoppel 274, 278 (1963) 219 Cal.Rptr. v. Gentile Cal.App.2d [33 issue. (Topanga Corp. particular Dairymen’s (1968) 266 269 Cal.App.2d Fertilizer Coop. v. Inc. 56]; see also Rynsburger 102].) Cal.Rptr. [72 206 as to what was involved and decided’ there be can
conjecture necessarily Talman, no collateral (Talman 39, v. 229 42 estoppel Cal.App.2d [39 Pearson, 211, Stout v. 683]; 216; Cal.Rptr. supra, Co., Blumenthal v. 563, Cas. 566-567 P.2d Maryland Cal.App. [6 ‘ “ intent, 965]); must be certain to and not to be ‘Every estoppel every taken Pearson, or inference”” v. at by argument (Stout 216). supra, p. Hebbron, And as said in Graves v. 125 Cal. P. ‘it 12], must [58 . . . that the was raised and appear determined in the precise question former suit. If there be record, on this head any uncertainty whole matter the action will be at new subject large open ” contention, .. .’ *11 court; the were different in the case before this
Clearly, parties moreover, it not does that issues the case of appear litigated Bd., v. 937, Williams Workmen’s 41 Comp. Appeals supra, Cal.App.3d were identical with those herein. a The rationale presented underlying determination that an did not so abandon his employee fully employ- ment that his should be relieved from differs employer statutory liability from the determination of his vicarious for employer’s liability expanded Moreover, caused third to and court injuries parties by employee. counsel in the case included the issue of Trans Globe’s present liability those to be determined did not Plaintiff’s among jury. attorney enter a in abatement or a continuance in reliance plea request upon outcome the workmen’s case. of another compensation Pendency action constitutes valid for a continuance v. (Robinson El Centro ground Grain Co. 133 (1933) 567 P.2d or 554]) a in abatement Cal.App. plea [24 (Simmons v. Court (1950) 96 P.2d Superior [214 A.L.R.2d 288]). in view of his as to the outcome Possibly uncertainty the case on counsel failed defer to the trial and the appeal, proceedings, issue was there. fully explored litigated his that the decision rise to a collateral
Despite position gave appellate it was not until the of all conclusion the evidence that estoppel, plaintiff’s counsel took formal action on that he then moved for a any ground; continuance, directed verdict. While he have been he entitled to a might was not entitled to directed verdict.
Moreover, as the trial counsel first asserted his court declared when on the effect of the decision position appellate during pretrial proceed- issue common law for ings, the. liability negligent employer’s its reckless driving by employee properly presented jury. on determined the facts that Trans not for Globe was liable jury in effect asks reverse To ask to Kelly’s injuries. plaintiff-appellant issues to one as trial was principal that the nullity determination since unrealistic unreasonable would be which therein litigated, the trial. raise issue did not during counsel timely plaintiff’s the combination conclusion from the I dissent opinion’s majority dire and voir the trial conducted in which of the manner judge on to instruct refusal plaintiff’s counsel-proffered error. constituted » prejudicial The record of the facts warranted. A detailed treatment more appears seven Globe about for Trans that Williams had been reflects working noon on About 12 o’clock weeks at the time of the accident. day Trans Globe and office of his to the Irvine employer reported deliver certain tickets to Cook, instructed office Joan manager, Ana and then an office in Santa for the tickets from go collect a check then a book and Trans Globe to Madre office of to the Sierra pick up airline tickets to to deliver Medical-Surgical return Orange County Trans Globe. Mrs. the check and book to at Irvine and to return building *12 left, he directions to Williams before Cook indicating provided Madre to the Sierra to take from routes he was Orange County precise basis was on an Williams’ travel hourly plus agency. compensation car. for the use of his mileage that told Williams “he was to be back to the
Mrs. Cook testified she later”; at office three o’clock and no that the reason he was to be back 3 a at 4:30 that was because she was on business day p.m. leaving trip to attend a seminar and wanted to make sure had the check she p.m. and needed the book for the seminar. back Cook did not
Williams testified that Mrs. exact time to specify the Trans Globe office in but that he knew that return to Orange County was to return the check that same that “She (Mrs. Cook) day; policy the fact she wanted the book back to her.” He further knew that stressed he was to deliver the and Trans Globe tickets) the doctors’ offices (where n book) he to return the check and the (where office Orange County area left the closed at 5:30 that he County actually Orange officially p.m.; after Mrs. Cook and directions about following given p.m. a route to find Madre while he the book in Sierra trying up picking took him to his a hitchhiker2 and he back County, picked up Orange or carry passengers never to Williams was instructed pick up testified that 2 Mrs. Cook Trans Globe. in his vehicle while he was in his engaged van which was start, since the van would not he drove inoperative; the hitchhiker to his home where he for a while and had stayed talking refreshments; that he intended to return to from that Orange County location but was lost and confused for the Pasadena looking never (Williams) to ask Freeway; directions at station stopped filling nor did he his Trans Globe for telephone directions or to tell employer them he was lost. Sarver, Witness Frank E. officer for the motorcycle police City Pasadena, testified that he first observed Williams at 5 on p.m. January
24, 1973, eastbound on Foothill Boulevard driving Toyota approach- Sierra Madre Boulevard where Williams ran a red ing at that light intersection; that Williams to the next block (Altadena) and proceeded of a left-hand turn to northbound on stopped preparation Altadena go Avenue; but he (Officer Sarver) behind him and activated his pulled up horn; red had Williams station road light out gas map spread him; in front of that Williams looked in the rear view mirror at the officer, down the as the turned and instead of put map light green turn, a left “veered to the and into No. 1 lane east- making right across the double line” and east- bound—swung yellow “proceeded westbound”; bound in the No. 1 lane the officer Williams with pursued activated; siren that he Williams who was “in excess of pursued traveling 90 miles an hour” to of the collision with vehicle at the point plaintiff’s intersection of Foothill Boulevard and Sierra Madre Villa.
Witness Van R. Pasadena, officer with the Downey, police City testified that 30 to minutes after the accident he had the following conversation with Williams in the room at emergency *13 Huntington Memorial Did “Q. to Mr. Williams first or did he Hospital: you speak speak you first? A. [1] No, he spoke to me first. [1Í] Q. What did he say? A. He looked at me and said that he was he didn’t [If] up sorry stop me. Q. Did to him at that you time? A. I asked say [1Í] him anything [If] where he was What Q. did Mr. Williams tell going. A. That [If] you? [U] he was to Ontario to see his friend and that going he was lost.” girl
Williams testified he did not remember that statement making officer. contention the trial court’s voir dire of the
Turning plaintiff’s error, constituted as counsel observed in prospective jurors prejudicial brief, his “the court focused the attention on the thorniest opening jury’s factual and issues in the case—whether there was a ‘substantial legal
209 The court and a return to course deviation’ employment.” of what situations illustrative to the several jury hypothetical presented Plaintiff’s counsel substantial deviation. not constitute might might of the second the first made no day day. morning objection during and the court asked what he an in chambers type expressed objection counsel wish to have situation might presented; hypothetical none, Nonetheless, so none was the trial court further given. produced which instructed the on the of the law jury day aspect plaintiff’s had He would counsel told that one of the issues be requested. jury Williams, whether after a deviation from had returned to employment, business. The trial court considerable latitude in employer’s enjoys and voir v. West Coast the area of selection dire. Rousseau (See juror House Movers (1967) 256 878 655].) Cal.App.2d Cal.Rptr. [64 next to assertion that the trial court committed
Turning plaintiff’s 3, her instruction No. error in give special jury prejudicial refusing the instruction in follows; entitled reads as question, “Principal Agent,” service,
“Where an abandons his agent temporarily principal’s becomes liable for acts when resumes his principal again agent’s agent attitude, duties, and the is not affected mental re-entry merely by agent’s that attitude with a connection in but there must be reasonable coupled with the work in which he should be time and engaged. [Citing space 430 P.2d 200).]” v. 31 (1939) (88 Cain Marquez Cal.App.2d in refusal of the that no error was committed I would hold prejudicial entitled to have the because is not above instruction party “[a] so as instructions instructed long given any language particular Matthews, 684 v. state- the law. Cal.App.2d correctly (George is not P.2d When an instruction 863].) appellant requested [346 it not error to refuse those different from those materially given, Inc., 191 v. Alves Service (Wood proposed by appellant. Transportation, Brother, 723, 733 v. Johnston 114]; Cal.App.2d Cal.Rptr. [13 464, 474 v. 23].)” Clark (Hom (1963) Cal.App.2d Cal.Rptr. [12 622, 643 1 1].) Cal.Rptr. [35 *14 The BAJI No. court below instructed the by giving adequately 13.01 of and BAJI No. 13.02 (When (Scope Authority—Meaning)3 Agent 3 BAJI No. 13.01 reads: “It is not that a act or failure to act be necessary particular the it within the of the authority authorized expressly by bring scope agent’s principal or if it or Such conduct is within the of his authority employment employment. scope and occurs while the in the duties which he was employed perform is agent engaged to, the which is incidental relates duties. Conduct for the benefit of principal to those *4 Affairs, court).* the Personal as modified
Attends to there be semantic differences in between the Although may language the in first “and” the instruction and BAJI language preceding proffered modified), No. 13.02 the matter (as covered the subject adequately latter instruction.
Plaintiff focuses on that of her portion proffered following intent, the first “and” time and as factors' to be pertaining space considered as guidelines. 430, case of Cain v. cited as Marquez, supra, instruction, the for was a nonsuit case. The
authority proffered requested instruction was from lifted the end of the first on apparently paragraph “It 442. The entire on states: page page paragraph, commencing seems to that a for the a be established master is liable result of firmly servant’s when servant is in the course of his the negligence acting It that ever a is not the rule itself but its causes employment. application doubt. for himself. He be in an The servant bemay acting may engaged He errand of his own. abandon his master’s service independent may work, or While still his master’s he doing may permanently temporarily. a be also of own. He be his his master’s serving purpose may performing work but in forbidden manner. No formula be stated will may enable us to solve the whether at a moment problem particular servant is his master’s business. We particular engaged recognize the facts before the will court the result. We realize that precise vary facts, differences of unlike effects. But whatever the may produce degree the answer a consideration what the servant was depends upon doing when, and where and he how it. He be so distant why, doing may labor, from the scene of his or he have left his work for such proper may time, as to evidence a his Or length relinquishment employment. the circumstances have a more doubtful That the may meaning. servant with or of an performance connected for customarily reasonably necessary authorized act within the or agent’s is scope authority employment.” reads; behalf and within 4 BAJI “When is on his No. 13.02 an agent acting principal’s attends to some incidentally his if while so also authority, engaged, himself, as so not relation so agency matter does break doing strictly personal from for conduct. agent’s to release the responsibility principal hand, or deviates from the business “On the when an departs substantially other agent not for his some principal or service of his principal, activity object pursues is not embraced responsible not within his reasonably employment, principal done, or deviation. done or not in such activity, anything leaves the “The from time relationship suspended employee court.) (As until he of his modified returns.” *15 he is where would not be had he his master’s orders in itself is obeyed immaterial, as it tend to show a except may permanent temporary abandonment of service. his master’s Should there be such temporary abandonment the master becomes liable for the servant’s acts again when the latter once more to act in his Such a business. reentry begins There must be not affected the mental attitude of the servant. merely by attitude with a connection in time reasonable space coupled rule on No hard-and-fast with the work in which he should be engaged. He choose a either of or time can be may subject applied. space different back.” way in such deviation from cases as herein
Clearly involved no rule “hard-and-fast” can be and there is BAJI no applied, instruction on that issue. “The basic instruc- philosophy pattern jury tions is should limit his judge responsibility communicating law to the and leave to counsel who alone applicable advocacy of the law to the facts in evidence.” th may argue (BAJI (5 application IX.) ed.) p.
Here, the over 900 pages reporter’s transcript closing include The récord reflects that each counsel arguments. the critical pinpointed issue as between and Trans Globe. Plaintiff’s counsel stated plaintiff is, “The issue' at the time the during accident closing argument: really occurred he business, furthering employer’s returning tickets, area to deliver those whether that or the Orange County day before'he in to take his next following morning reported up assignment.” Defense counsel for Trans Globe stated: “And that is the key question this case. At the time of the accident was Howard Williams in the scope issue, of his which leads to the did basic Howard Williams employment, return to the of his as of the time of this accident.” Both counsel then the direct indirect evidence vigorously argued intent, on that which of issue time bearing necessity encompassed factors which are in a determina- inherent factual space obviously tion of such an issue.
Moreover, failure to the latter give part proffered event, which was refused would not be more prejudicial any being favorable the defense under the facts of the case at bench.
The record is clear that driver Williams testified in court that after the hitchhiker’s home he intended to return to leaving Orange County but was confused and lost. Plaintiff’s counsel this vigorously argued *16 The instruction “the is not affected
point. proffered says re-entry merely attitude”; mental this enfeebles the by agent’s Williams’ weight continued, as to his intent. The instruction “but testimony proffered there must be that attitude with a reasonable connection in time coupled with the work in which he should be BAJI No. space engaged.” 13.02 refers to “not embraced within his activity reasonably employ Here, ment.” witness Cook testified that Williams was to return although to the evidence is clear that knew he Williams Orange County by p.m., return the and book to his check in should employer Orange County and that the same offices would be closed after 5:30 day officially p.m. into consideration that the accident occurred at 5 miles Taking p.m., with- Williams Pasadena 90 miles an hour in the away, traveling direction of Ontario not and two hours after the general Orange County, return, time Mrs. Cook testified was instructed to pursued by with Officer that about a police, conjunction Downey’s testimony half-hour after the accident Williams told him “that he [William’s] lost,” Ontario to see his friend and that he was it is obvious going girl that failure to of the instruction give portion proffered pertaining time and factors was not would but have space prejudicial plaintiff been more favorable to defendant Trans Globe as neither the indicating intent nor to be in before the Trans Globe office capacity Orange County closed. did not ask for additional instructions on “substantial “intention,”
deviation” and re-read but to of the law that would portions to those matters. The trial re-read BAJI No. 13.01 might pertain judge BAJI (as modified) No. 13.02 twice and cleared word last up “returns”5 as to “back within the of his referring scope employment.” Since, was not it would have been apparently plaintiff’s attorney present, to elucidate further. improper ... Let the show I have received a communication from Mr. E. 5 “THECOURT: record Fernandez. R. it, Fernandez, is that have selected as foreman of “I take Mr. been you jury;
correct? That is Your Honor. “THE FOREMAN: correct. Fernandez, have, Mr. The communication I signed by “THE COURT: apparently this: “ that would or cover: ‘Would like to have of law re-read might any portion “T. Substantial deviation. “ ‘2. Intention.’ do with “I will re-read one of the instructions having authority were with intention to substantial deviation. There no instructions to do referring and I having re-read I will with the cannot them. also read to do having preliminary which reads: meaning authority, express VI, article section of the California Constitution Finally, provides *17 aside,... in cause, “No shall be set on the part: judgment any ground of misdirection of the ... or for error as to matter of jury, any any unless, cause, after an examination of the entire procedure, including evidence, the court shall of the be that the error opinion complained has resulted in miscarriage justice.”
After the entire cause and evidence and the instructions as examining whole, a review of the court file and exhibits including superior Court, I to rule California Rules of cannot 12(a), pursuant say manner in which the trial court to conducted dire and/or its refusal voir error or No. constituted give plaintiff’s special prejudicial have resulted ain miscarriage justice. 13.01 reread and 13.02 by [BAJI court.] that have addressed “I that is the best can .question you believe do. response me. further, there Mr. Fernandez? “Is “THE FOREMAN:Not at this time. anything Honor, I if it was none of us NUMBER 11: Your would like to know possible, “JUROR read, that and sent in to
can write as as can and is it to have you rapidly possible typed so we can— room “THE without Mr. or from his office here and COURT: Not someone Stanley being it. consenting “Are to the last instruction about deviation? referring you NUMBER 11: Yes. “JUROR then, me it “THE COURT: Let read again, very slowly. 13.02as modified then reread by [BAJI court.] return to where he he returns. Does he have to actually NUMBER 8: Until “JUROR that with the job? have to something goes along started or does be just doing are have to You going I’m I can’t answer question. “THE COURT: sorry. not, facts, he was back all can conclude whether or from the you conclude factually within the of his employment. scope us, now, read when first read to you what read you “THE FOREMAN: Prior to you just read that you to further his company’s—could about doing something something sentence over? authority. Let me read the definition of “THE COURT: again reread BAJI 13.01.] [Court “Does that answer your question? “reasonable,” NUMBER3: The word after sir? “JUROR “THE COURT: (Reading:) “ of....’ ‘... or reasonably necessary performance NUMBER3: Thank “JUROR you. “THE COURT: (Reading:) “ ‘... an authorized act is within the authority agent’s employment.’ NUMBER3: Thank “JUROR you. Yes, “THE COURT: ma'am? 12: said ‘until he until he starts “JUROR NUMBER You returns.’ Does encompass to return? “THE FOREMAN:Can’t answer that. “THE I COURT: can’t help you.” Here, trial lasted 10 in which all were days litigants their counsel who represented competent vigorously represented clients and which was over trial judge. presided experienced, trial, Plaintiff was entitled to a fair not a trial. She has had fair perfect trial her full in court. day
I would affirm the judgment. *18 for a Court was denied Appellant’s petition hearing by Supreme 15, 1976. September