(concurring in part and dissenting in part).
I disagree with the holding of the majority opinion that the employer can be held liable on a respondeat superior basis for the torts of its employee.
The majority opinion concludes that when conflicting inferences can be drawn from the facts, here undisputed, the question of whether a tortfeasor was acting within the scope of his employment by an employer will be left to jury determination. With that principle I have no quarrel. However, I am not satisfied that the case before us is an appropriate one for the application of that principle.
The problem presented is whether under any view of, or inferences to be drawn from, the undisputed facts of this case, respondeat superior liability can be imposed.
The “going and coming” rule, widely accepted in our law, normally absolves the employer of liability for torts committed by his employee while going to or from the place of work. Judicial decision has *769developed various exceptions to the rule, most of them covering- situations clearly distinguishable from the case before us.
The majority opinion relies on Balise v. Underwood, 71 Wash.2d 331, 428 P.2d 573, 577 (1967), and Hinman v. Westinghouse Electric Co., 2 Cal.3d 956, 88 Cal.Rptr. 188, 471 P.2d 988, 992 (1970). The Balise case is in point, if one accepts its underlying premise. There a construction contractor’s employee traveled each day to a job site 35 miles from his home. Under the agreement between the contractor and the employee’s labor union, he received, in addition to his ordinary pay, an allowance of $4.50 a day. While returning from work on one occasion he was involved as the responsible party in an automobile accident. The trial court, sitting without a jury, found that the employee was not within the course and scope of his employment and that the employer was not vicariously liable. On appeal, the judgment was affirmed. The court found the facts to be susceptible of varying inferences and implications. Accordingly it sustained the trial court’s finding.
The opinion in Balise makes it apparent that the Washington Supreme Court would have sustained a finding that the employee was within the scope of his employment. Thus, although the result in that case is different from the one at bar, it does stand as authority that the payment of a fixed travel allowance, together with other factors, may be sufficient to bring travel to and from work within the course and scope of employment.
In the Hinman case the employee traveled directly from his own home to the job site. Under a contract with the employee’s labor union, the employer paid one and one-half hours pay for round-trip travel time, plus $1.30 travel expense. The court held that the employer was liable for automobile injuries caused by the employee while traveling from work.
When one discards the discussion in the Hinman case of the traditional “going and coming” rule and its exceptions, the rationale of decision is rather simple. The court reasoned that the employer benefits by being able to reach out into a broad labor market and, through paying for travel time and expense, to induce persons to work for him. By deciding that it is desirable for his enterprise to go beyond the “normal” labor market, the employer should bear and pay for the risks inherent in his decision.
The difficulty with the Hinman doctrine is that it seems boundless. One is left in doubt as to what amount of commuting should be considered “normal” in a particular labor market. The travel allowance dealt with in the Hinman case arose from a collective bargaining agreement. The amount of the allowance varied by a fixed standard: the distance from the city hall in Los Angeles, California, to the job site. How this standard can have any relationship to reaching outside the “normal” labor market, or to increasing risk of injury to highway users, is never explained. In my opinion, the Hinman doctrine so drastically alters the normal “coming and going” rule as to virtually do away with any reliable guide to judicial decision. The rule is based on the employer’s surrender of control over his employee once the work day has ended. To say that an exception will be drawn in all instances in which an employee receives a travel allowance, notwithstanding that the employer has no control over the employee during his travel to and from work, is to defeat the very purpose of the rule.
I find more persuasive the reasoning of Lundberg v. State, 25 N.Y.2d 467, 306 N.Y.S.2d 947, 255 N.E.2d 177 (1969). There the employee lived at the job site during the work week, with his living expenses being paid for by the employer. On weekends the employee traveled 80 miles to his home to visit his family. He was paid mileage by his employer for such travel. The court held, as a matter of law, that the employee while traveling was not within the scope of his employment. Accordingly the employer could not be held liable upon a respondeat superior basis. The factors emphasized by the *770court were that the employee was not driving' to satisfy any obligation owed to his employer, that the employer had no control over the movements or activities of the employee, and that the payment of a mileage allowance bestowed no right of control upon the employer. If anything, the facts in Lundberg were stronger than those in the case at bar for finding respondeat superior liability.
The difficulty with the majority opinion is that it drastically increases the tort liability of employers without providing any coherent or rationalizing principle by which to keep such liability within reasonably predictable bounds.
The activities of the employee, Jack, seem no different from those of commuting employees generally. Jack was not on any special errand for his employer. As a flagman, driving an automobile was not part of the work he was employed to perform. The accident took place outside working hours and several miles away from the job site.
The employer’s failure to provide a work camp or to provide transportation for its employees can hardly give rise to liability.1 The job site apparently was not of the remote type where lodging would be furnished, and it was within commuting distance from Anchorage, the main population center of Alaska.
The main support for the majority opinion is that the payment of $8.50 per day extra remuneration somehow induced Anchorage-based workers to accept employment, thus benefiting the employer. I consider this a very fragile basis for imposing liability. The workers were paid their $8.50 regardless of whether they lived close to or far from the job site. The payment of the $8.50 resulted from the terms of the employer’s labor agreement, which required payment upon a uniform basis having nothing to do with where employees actually lived or how far they might commute. I find it most difficult, then, to regard the extra payment as a commuting inducement.
Resting liability on this basis suffers from all of the difficulties mentioned in connection with the Himnan case, supra2 If an exception is to be carved out of the “going and coming” rule because the employer has reached beyond a “normal” labor market, how can the relevant market ever be determined? Should it rest upon the size, location, and nature of the employer’s business? Should it be gauged by the kind of employees one would expect to find in such businesses ? Must we rely on sociological and traffic engineering studies to determine what constitutes a normal method of getting to work, as contrasted with means so unusual that the employer must be deemed to have induced his workers to commute from a “broad” job market?
Not only do these questions point to the unworkability of the principle, they also highlight the total dearth of information in the record of this case tending to answer such questions.
It is noteworthy that in large industries most labor agreements are negotiated between an organization representing a number of business enterprises and the union. An entrepreneur who belongs to such a management organization has little choice but to accept the labor agreement negotiated on his behalf. Ordinarily, to reject the agreement is simply to go out of business. Hence it is unrealistic to denominate a travel allowance in a collective bargaining agreement an “inducement” for commuting. The existence of a travel allowance in a collective bargaining agreement is often a matter of pure accident. Finally, workers who receive a higher wage scale— *771but no travel allowance — may be just as induced to commute as workers who receive a travel allowance but lower hourly wages. In short, basing liability on the presence of a travel allowance would be utterly arbitrary.
Denying the employer’s liability in this case does not conflict with our holding in Fruit v. Schreiner, 502 P.2d 133 (Alaska 1972). There we dealt with the activities of an insurance salesman attending a company-sponsored conference where the salesmen were encouraged to have social contacts at places other than the conference headquarters. While returning from the pursuit of such activities to the conference headquarters, one of the salesmen negligently injured the plaintiff. Our holding that the company was liable concerns a factual setting which is obviously distinguishable.
I would hold as a matter of law that Jack was not within the scope of his employment with Rogers & Babler at the time of the accident. Although I would not, therefore, reach the question of reducing the verdict by the amount received from the Knoxes, I do agree with that portion of the opinion which decides that such a reduction must occur.
. The situation here is distinguishable from “remote site” eases where employees are required to live on the premises of the employer, relatively, isolated from civilization. See Anderson v. Employers Liability Assur. Corp., 498 P.2d 288 (Alaska 1972), which deals with workmen’s compensation for recreational injuries sustained at a remote work site.
. The majority’s reliance on Restatement (Second) of Agency § 229(1) and comment d (1958) seems misplaced. That comment concerns situations in which the employer physically supplies a vehicle for his omihoyees’ use.