Kelly v. Trans Globe Travel Bureau, Inc.

60 Cal. App. 3d 195, 131 Cal. Rptr. 488, 41 Cal. Comp. Cases 1009, 1976 Cal. App. LEXIS 1714

• Court: California Court of Appeal
• Decided: July 16, 1976
• Docket: Civ. 46159
• Status: Published

Opinions

Opinion

THOMPSON, J.

The matter at bench is an appeal from a judgment for defendant in a personal injury action. It involves the novel issue of the collateral estoppel consequences of a finding iri a workers’ compensation proceeding that an employee was engaged in the scope of his employment when injured, to a later civil action in which a third party injured in the same occurrence as the worker asserts the¹ vicarious liability of . the employer. The appeal involves, also, the propriety of judge-conducted voir dire of prospective jurors in a fashion seeking to preinstruct the prospective jurors in the application of hypothetical facts to principles of law and the entitlement of a plaintiff to a jury instruction defining return of an agent to the scope of his employment where return to scope of employment after deviation is the crucial factual issue in the case.

We conclude: (1) findings of injury within scope of employment in a workers’ compensation proceeding do not collaterally estop the employer from litigating the issue of scope of employment where that issue is relevant to the claim of a third party who asserts that the employer is vicariously liable for a tort of the employee; (2) the method of voir dire employed by the trial judge was improper; (3) the trial court erroneously refused plaintiff’s proposed instruction defining return to the scope of employment; and (4) the errors of the trial court in jury voir dire and refusal of the instruction are, in combination, prejudicial. We therefore reverse the judgment.

Injured in an automobile accident when the car in which she was riding was struck by one admittedly driven negligently by Howard J. Williams, plaintiff Marion J. Kelly sued Williams and his employer Trans Globe Travel Bureau, Inc., claiming that because Williams was acting within the scope of his employment at the time of the accident Trans Globe was vicariously liable for his tort.¹ The negligence of Williams having been admitted, the only issues tendered to the trial court were amount of damage and whether Williams was acting within the scope of his employment.

Trial was to a jury. The trial judge conducted an extended personal voir dire examination of the panel of prospective jurors. In essence, he sought opinion from individual prospective jurors on a series of hypothetical questions dealing with scope of employment and proximate cause much in the manner that a law school instructor teaching a first year class in agency might employ the Socratic method.

None of the hypothetical questions dealt with the issue of return to the scope of employment after a deviation, although the subject of deviation itself was covered. When counsel for the plaintiff asked that a hypothetical situation involving return to scope of employment be presented, the trial judge responded that he would inform the jury that “under this set of facts there may be a return from a deviation.” The judge told the panel that if “the deviation had ended and . . . the employee Williams had in fact returned to the scope of his employment, he was doing things for the benefit of his employer, it was within the scope of his employment, employer’s instructions, he was following the duties assigned to him at the time of the accident, then under those circumstances the employer would be responsible.” Queried by a prospective juror whether “By coming into the scope of his employer [s/c], do you mean he’s gone back to his place of employment or he has come to a point and then gone back?” the judge replied, “I can’t make up the facts for you. I can’t say at this point you must find that the employee returned to his scope of employment. This is your responsibility from all the facts.”

At the trial, evidence on the issue of scope of employment was conflicting.

That favoring plaintiff’s position showed the following. Williams was employed by Trans Globe pursuant to an arrangement by which he was required to use his own Toyota automobile and was paid mileage plus an hourly compensation. His duties encompassed those of a delivery man. At about 12 noon on January 24, 1973, Williams reported for work at the Irvine office of Trans Globe. He was instructed to deliver tickets to and collect a check from an office in Santa Ana and then to go to the Sierra Madre office of Trans Globe where he was to pick up a book and then return to Orange County where he was to deliver airline tickets to a Trans Globe customer, collect a check, and return it to Trans Globe’s Irvine office.

Williams left the Irvine office at about 1 p.m. He made his Santa Ana call and proceeded to Sierra Madre where he picked up the book. He had difficulty finding his route back to Orange County. While seeking it, he picked up a hitchhiker whom he drove to the hitchhiker’s stalled van. When the van could not be started, Williams drove the hitchhiker to the latter’s home where the two stayed for a time. Sometime before 5 p.m., Williams 'commenced his return trip to Orange County but became lost and confused looking for the entry to the Pasadena Freeway. At about 5 p.m., Williáms ran a red light at the intersection of Foothill Boulevard and Sierra Madre Boulevard. He stopped in a left turn lane northbound on Altadena Avenue. A police car pulled up behind him with red light activated and horn sounding. Williams veered to the right and fled from the police at high speed reaching more than 90 miles per hour. While fleeing, Williams collided with the car in which plaintiff was riding, causing the injury for which plaintiff sued.

The defense evidence consisted of a controverted statement attributed to Williams that at the time of the accident he was on his way to see a girl friend in Ontario.

During the course of the trial, the Court of Appeal filed its opinion in Williams v. Workmen’s Comp. Appeals Bd. (1974) 41 Cal.App.3d 937 [116 Cal.Rptr. 607] in which it held that for the purpose of workers’ compensation benefits Williams was engaged in the performance of his duties at the time of the accident. Plaintiff moved for a directed verdict on the issue of Trans Globe’s liability, arguing that the Court of Appeal opinion, then not yet final, collaterally estopped Trans Globe from contesting the issue of whether Williams was acting within the scope of his employment at the time of the accident. The trial court denied the motion.

The trial court instructed the jury that the negligence of Williams should be imputed to Trans Globe if Williams was acting within the scope of his employment at the time of the accident. In terms of BAJI No. 13.01, it instructed that: “. . . conduct is within the scope of his authority ... if it occurs while the agent is engaged in the duties which he was employed to perform and relates to those duties.” The court further told the jury, in terms of BAJI No. 13.02: “. . . when an agent departs or substantially .deviates from the business or service of his principal, and pursues some activity or object not for his principal and not reasonably embraced within his employment, the principal is not responsible for anything done ... in such activity or deviation. The employment relationship is suspended from the time the employee leaves the scope of his employment until he returns.”

The trial court refused an instruction offered by plaintiff borrowed from Cain v. Marquez (1939) 31 Cal.App.2d 430, 442 [88 P.2d 200], and section 237 of the Restatement Second of Agency and stating: “Where an agent temporarily abandons his principal’s service, principal again becomes liable for agent’s acts when agent resumes his duties, and the re-entry is not affected merely by agent’s mental attitude, but there must be that attitude coupled with a reasonable connection in time and space with the work in which he should be engaged.”

While the jury was deliberating, it sent a note to the trial judge which states: “Would like to have any portion of the law re-read that would or might cover: 1. Substantial deviation 2. Intention” (Underscoring in original.) The trial court responded that it had not instructed on the subject of intention. It then reread its prior instructions which did not define the requirements of return to scope of employment after a deviation from it.

The jury returned its verdict for plaintiff against Williams and in favor of Trans Globe. This appeal from the resulting judgment followed. In it, appellant contends: (1) the trial court erred in not treating the decision in the workers’ compensation case as conclusive of the .issue that Williams was acting within the scope of his employment; (2) the court prejudicially erred in its voir dire of the jury; and (3) the court prejudicially erred in refusing plaintiff’s instruction defining return to scope of employment after a deviation.

Collateral Estoppel

A person who was a party to prior litigation may, in subsequent litigation with a different opponent, be bound by adverse final determinations of issues in the prior case by reason of the rule of collateral estoppel. (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810-813 [122 P.2d 892].) An adjudication by the Workers’ Compensation Appeals Board is one which may be the basis for application of the doctrine. (French v. Rishell (1953) 40 Cal.2d 477 [254 P.2d 26] (res judicata).)

However, collateral estoppel is not an inflexible, universally applicable principle. Rather, “policy considerations” may limit its use where the limitation on relitigation underpinnings of the doctrine are outweighed by other factors. (O’Connor v. O’Leary (1967) 247 Cal.App.2d 646, 650 [56 Cal.Rptr. 1]; People v. Seltzer (1972) 25 Cal.App.3d Supp. 52, 54 [101 Cal.Rptr. 260].) Here significant reasons of policy dictate that collateral estoppel not be applied.

A jury trial is not available to the employer in the workers’ compensation case. If a determination of scope of employment in that proceeding is deemed collaterally to estop the employer from denying scope of employment when a third person asserts it as a basis for vicarious liability of the employer, the employer is denied his California constitutional right (art. I, § 7) to a juiy trial on a key issue on which his liability turns.² (See Beacon Theatres v. Westover (1959) 359 U.S. 500 [3 L.Ed.2d 988, 79 S.Ct. 948].)

Collateral estoppel is by no means an unmixed blessing where it is potentially applicable to bind a party to a proceeding in future litigation with nonparties. Then the possibility of collateral estoppel changes the economic balance of litigation by creating a controversy in which the potential of loss to one party is much greater than the possible gain to the other. A defendant fearing the collateral consequences of the result of litigation in future proceedings with others may be forced to spend in defense sums all out of proportion to the amount in immediate question. He is required to take procedural steps at trial and on appellate review that otherwise would not be taken because of the economics involved. Inevitably, the adversary system requires that the plaintiff meet those actions and take his own to counter them. In the end, the collateral estoppel possibility can, and sometimes does, result in expense of litigation that threatens to exhaust the amount in immediate controversy.

The adverse effect of the potential of collateral estoppel upon the economic balance of civil litigation is particularly undesirable in workers’ compensation proceedings. The policy of the workers’ compensation law is to secure the quick and, where possible, certain resolution of questions of coverage. Any doctrine which encourages delay in final resolution by the exercise of procedural and appellate steps is counter to the policy. The workers’ compensation law, in stark contrast to the system of other personal injury litigation, is one of simplified procedure to reduce the call of legal expense upon the societal fund available for compensation for injury so that the maximum possible portion of the fund is available to compensate loss rather than the cost of determining controversies, The possibility of collateral estoppel consequences of a workers’ compensation determination with its effect upon the economic balance of the controversy is counter to that pdlicy also.

In sum, the effect upon the right to jury trial and the adverse consequences to the workers’ compensation proceeding itself outweigh the benefit of collateral estoppel in avoiding relitigation between a party to the workers’ compensation proceeding and a nonparty.

We thus conclude that the trial court correctly denied plaintiff’s motion for directed verdict on the issue of vicarious liability.

Jury Voir Dire

The primary purpose of voir dire of a jury panel is that of selection of a fair and impartial jury. It consists of examination of prospective jurors to determine if there is a ground of challenge for cause. (4 Witkin, Cal. Procedure (2d ed.), Trial, § 111.) Here the voir dire conducted by the trial judge went far beyond that purpose. Had the same questions been asked by counsel, they would have constituted grossly improper attempts to indoctrinate the jury and precondition its determination of facts. (4 Witkin, id., § 114.)

While preinstruction of prospective jurors by the trial judge is not erroneous and may in fact be desirable if the preinstruction is fair and accurate and, while conceivably the preinstruction process can sometimes be utilized in the context of judge voir dire of prospective jurors, here any preinstruction was neither fair nor complete. Prospective jurors were subjected to Socratic examination on issues of scope of employment and deviation but were misled as to the legal principles applicable to the determination of return to scope of employment after a deviation. As to that issue, the prospective jurors were told that Williams was acting within the scope of his employment if he “had in fact returned to the scope of his employment, he was doing things for the benefit of his employer, it was within the scope of his employment, employer’s instructions, he was following the duties assigned to him at the time of the accident. . . .” That conjunctive statement erroneously stated the law. In context, it was enough to place Williams within the scope of his employment if, after deviation from it, he “was doing things for the benefit of his employer” absent specific employer instructions.

Thus, the trial court erred in its conduct of voir dire examination of prospective jurors.

Refused Jury Instruction

A party is entitled to a jury fully and completely instructed on the law applicable to the facts presented to it. (Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 372 [42 Cal.Rptr. 748].) Here plaintiff was denied an instruction proposed by her that was necessary if the jury was to be fully informed of the principles of law applicable to the key factual issue presented. While the instruction proposed by plaintiff is not a model of what an instruction on the law of return to scope of employment should be, it nevertheless encompassed the elements of intent and spacial and temporal relationship that govern the ultimate determination. The remainder of the proposed instruction, while unnecessary to a proper statement of the law, is neither incorrect nor misleading in" the context of the case at bench. In those circumstances, the trial court was obligated either to give the proposed instruction or to modify it to eliminate the surplusage.

Prejudice

The combination of error in voir dire and error in refusing the jury instruction proposed by plaintiff was prejudicial. On voir dire, the prospective jurors were exposed to an erroneous statement of the legal principles applicable to return to scope of employment after a deviation. The jury instructions themselves omitted a salient principle necessary to an intelligent application of law to the evidence. The jury’s confusion is manifest by its unanswered question to the trial judge.

Disposition

The judgment is reversed.

Lillie, Acting P. J., concurring.

1 Another rider also sued. He is not a party to this appeal.

2 French v. Rishell, supra, 40 Cal.2d 477, holds that a prior workers’ compensation determination that a city fireman suffered a heart attack in the course of his employment conclusively determined the issue for the purpose of a later mandate action by the fireman against the city to establish his pension rights for a work-related disability. French is distinguished from the case at bench not only because it involves res judicata rather than collateral estoppel, but also by the fact that a jury trial is not available in mandate.