Mid-States Plastics, Inc. v. Estate of Bryant Ex Rel. Bryant

Chief Justice LAMBERT.

I dissent upon the belief that the majority has failed to apply accepted principles of Kentucky law relating to respondeat superior or vicarious liability. The generally accepted rule is as follows:

In general it is sufficient to make the master responsible that he gave to the servant an authority, or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment.1

Under this test, Appellees established vicarious liability from the facts that the employee Edwards was acting within the scope of his authority and for a business purpose when the tortious act occurred. Contrary to the majority view, it was not necessary to establish that the third party, Reverend Bryant, was present for the benefit of the company. This is in keeping with the purpose of vicarious liability which is to allow recovery for the tortious acts of a master’s employees. “Charging one with the negligent acts of another, under the doctrine of respondeat superior, is an arbitrary rule based on public policy; and its justification is that the employer should be vigilant in supervising those in his employ to protect the public generally.”2

The case relied on by the majority, Wigginton Studio v. Reuter’s Adm’r;3 is distin*732guishable both on its facts and in its disharmony with the body of Kentucky case law on respondeat superior liability. Factually, Wigginton turned on the distinction that the employee who offered the ride to the third party was shown not to have authority to do so. The Court in Wiggin-ton Studio cited the general rule that the company’s liability for the tort of one of its officers required that the officer be acting within the scope of employment and in furtherance of the employers’ business, but said that the employee and corporate officer Adams was not acting within the scope of her authority by asking a passenger to join her on a trip.4

In this case, Edwards, the president of the corporation, was broadly permitted to secure his own transportation, and whatever he did was implicitly approved and paid for by the corporation. There was evidence that Edwards had been known by the corporation to have taken his wife on trips with him. Edwards was thus never discouraged by the corporation from taking non-company passengers with him. Thus, unlike Wigginton Studio, Edwards had, at least, implied authority to invite a rider to accompany him on. the trip and to subject the company to liability when Edwards’ tortious act caused harm. Edwards was clearly acting within the scope of his employment. He was acting in furtherance of his employer’s business at the time of the fatal accident.

To make the necessary showing to establish vicarious liability, the proof must show that the act is one that the agent was employed to perform, or that it accrued substantially within the authorized time and space limits of the employment or that the employee was actuated at least in part by a purpose to serve the master.5 Here the trip was actuated by a purpose to serve the employer. The question is whether the trip furthered the business of Mid-States, not whether Reverend Bryant’s presence benefited Mid-States.6 It was not necessary to show that the invitation to Reverend Bryant furthered the business to hold Mid-States Plastic vicariously liable.

Wigginton Studio is singular in this jurisdiction in requiring that the rider’s presence be for benefit of the corporation in order to bind the employer to vicarious liability. From a public policy standpoint, it does not make sense to allow an employer to escape liability when it knew or should have known or expressly or impliedly authorized its employee to take private guests on its business trips. Thus, I break with the majority’s decision to overrule Estell v. Bamckman.7 Instead, I would affirm that case as an unremarkable but proper application of the law of Kentucky regarding vicarious liability for invitees of a company. As such, I would affirm the Court of Appeals’ reversal of the trial court’s summary judgment.

.Ben Humpich Sand Co. v. Moore, 253 Ky. 667, 69 S.W.2d 996, 997 (1934).

. Shedd Brown Mfg. Co. v. Tichenor, 257 S.W.2d 894 (Ky.1953).

. 254 Ky. 128, 71 S.W.2d 14 (1934).

. Id. at 16.

. Home Ins. Co. v. Cohen, 357 S.W.2d 674 (Ky.1962).

.See e.g. Weldon v. Federal Chemical Co., 378 S.W.2d 633, 634 (Ky.1964).

.571 S.W.2d 650 (Ky.App.1978).