Adams v. Foy, 176 N.C. 695 (1918)

Nov. 13, 1918 · Supreme Court of North Carolina

176 N.C. 695

CHARLIE ADAMS v. J. E. FOY and DERMOT SHEMWELL, Trading as FOY & SHEMWELL, and J. E. WORKMAN, Jr.

(Filed 13 November, 1918.)

1. Principal and Agent — Declarations—Evidence.

Neither the fact of agency nor the extent of the supposed agent’s authority can be proved by his declarations alone.

2. Same — Salesman—Automobiles—Nonsuit—Trials.

Testimony that on a former occasion one representing himself to be defendant’s agent tried to sell the witness an automobile, and at the time of the admitted negligence, while driving defendant’s automobile from one of defendant’s garages to another in a different town, he had renewed his efforts to sell the car of the defendant, which he was driving, and defendant’s admission of liability when the supposed agent was engaged for him in the capacity of salesman, is sufficient for the determination of the jury upon the question, and a judgment as of nonsuit upon the evidence is properly refused.

Appeal by defendant from Adams, J., at February Term, 1918, of DatidsoN.

This is an action against J. E. Workman, Jr., and Eoy & Shemwell, . for injuries to plaintiff’s horses in an automobile collision. The automobile was driven by Workman, and the collision occurred on the public road between Lexington and Thomasville, at night. The car which Workman was running was the property of one Mcllvaine, of Wilmington, N. C., and which had been left at the garage of Eoy & Shemwell at Lexington, and which was taken out by Workman in the evening, and he, with a friend, Dr. Kibler, drove over to Thomasville, and at the time . of the collision they were returning.

Workman was employed by Eoy & Shemwell as salesman for Ford cars in certain territory.

Plaintiff recovered judgment, and Eoy & Shemwell appealed.

Plaintiff alleges that at the time of the injury Workman was in the employment of Eoy & Shemwell and on business for his employers.

Eoy & Shemwell deny that Workman was on any business for them at the time of the injury.

It was not contended that there was no evidence of negligence against Workman.

A witness for the plaintiff was permitted to testify, over the objection of the defendants, that in the summer before the collision Workman tried to sell him an automobile for Eoy & Shemwell; that he reached the place of the collision a few minutes after it occurred, and found Workman and others there, and that Workman asked him if he did not want his new automobile, and tried to sell him one. The defendants excepted.

There was a motion for judgment of nonsuit by Eoy & Shemwell, which was overruled, and the defendants excepted.

H. B. Kyser and Walser & Walser for plaintiff.

Raper & Raper for defendants.

Pee Cuhiam.

The principle for which the defendants contend is well settled, that neither the agency nor the extent of the authority of the agent can be proven by the acts and declarations of the agent, and that these acts and declarations are not admissible against the principal until evidence of the agency aliunde has been offered (West v. Grocery Co., 138 N. C., 168), but the evidence objected to by the defendants was not offered for such purpose.

The agency and the authority to sell were shown by the admission of the defendant Shemwell to Sink, that Workman “worked for him”; by the evidence of Dr. Kibler, that “he (Workman) was selling automobiles for them” (Eoy & Shemwell) ; by the evidence of Shemwell, that “at the time of the accident Mr. Workman was a salesman for Eoy & Shemwell for Lexington territory,” and, the agency and authority being established, at least prima facie, it was competent to prove that at the time of the collision the agent was “engaged in that which he was employed to do” — -trying to sell automobiles, which is the meaning of acting within the scope of the employment. Jackson v. Tel. Co., 139 N. C., 353.

Nor do we think the motion for judgment of nonsuit, based upon the position that there is no evidence that Workman was acting within the scope of his employment at the time of the collision, can be sustained. He was using a car taken from the garage of Eoy & Shemwell at Lexington, and, according to the evidence of a witness for the defendant, he drove it to the garage of Eoy & Shemwell at Thomasville. Neither of the defendants testified that the use of the car was without permission, and apparently Workman had no business except between the two garages of Eoy & Shemwell. He tried to sell a car a few minutes after and at the place of the collision, and this is what he was employed to do, and when the plaintiff went to see Eoy & Shemwell about the payment of damages Shemwell said “he was not responsible for the troubles that Workman got into while he was out; that he worked for him, but he was not responsible for his troubles.”

What did Sbemwell mean by tbis statement? Was it tbat be denied liability'when Workman was “out” selling machines, or when be was “out” on bis own business ? Did be mean be worked for bim generally, or tbat be worked for bim at tbe time of tbe collision, tbe one thing be was discussing with tbe plaintiff ?

These are questions which tbe jury alone could settle, and they were properly submitted to them.

There are other exceptions, but' they depend on those discussed.

No error.