Cotton ex rel. Cotton v. Carolina Truck Transportation Co., 197 N.C. 709 (1929)

Nov. 20, 1929 · Supreme Court of North Carolina
197 N.C. 709


(Filed 20 November, 1929.)

Master and Servant D b — Master is not liable for injuries to third person by servant acting outside scope of employment.

One injured while riding on the running board of a truck as an invitee of the driver, an employee of a transportation company, may not hold the transportation company liable under the doctrine of respondeat superior for an injury resulting from the negligence of the driver in the absence of allegations and evidence that the driver was acting within the scope of his employment in giving the invitation, or had authority expressed or implied to invite or permit persons to ride on the defendant’s truck, or that the employer had knowledge or acquiesced in his so doing on former occasions, and where the evidence fails to disclose such authority a judgment as of nonsuit is proper.

Appeal by defendant from Daniels, J., at February Term, 1929, of CRAVEN.

Civil action to recover damages for an alleged negligent injury sustained by plaintiff when be fell or was thrown from a truck.

The evidence for the plaintiff tends to show that on 23 October, 1926, George Foy, who prior and subsequent to that time worked for the corporate defendant as a truck driver, was operating a truck in the city of New Bern, through a section principally inhabited by the colored race. The truck in question was a Mack Truck, such as the corporate defendant uses, with the name “Carolina Truck Transportation Company” appearing on the side. One witness testified that it had the words “Carolina Instruction Company” painted on the side of the cab. On seeing the plaintiff, a colored boy eleven years of age, and his companion, J ames Wilson, the driver stopped and picked them up for a ride. Wilson got on the inside of the truck and the plaintiff stood on the outside, on the running board, next to the driver’s seat.

It is further in evidence that George Foy had allowed the plaintiff to ride with him seven or eight times before, in the same neighborhood, and on the same truck which he was driving that day. As the truck turned the comer of Biddle and Bose streets, two unimproved streets, narrow and sandy, at a rapid rate of speed, the plaintiff’s foot slipped, and not being able to hold on with his hands, or regain his footing, because of the speed of the truck, he fell to the ground and was run over by the rear wheel of the truck, sustaining serious and permanent injuries. The plaintiff testified: “The ear was going fast when he turned the corner; it turned to the right; I was on the left-hand side, and as the car turned the corner I was flung out. I held up my hand *710trying to get back up there. I couldn’t bold myself up with this one band, so I fell off.. Tbe reason I fell off was because tbe car was going too fast.’’

Tbe evidence for tbe corporate defendant tends to sbow tbat it is engaged in freight transportation by automobile trucks between certain towns, and tbat none of its trucks or drivers has any business for tbe defendant in tbat section of tbe city where tbe plaintiff was injured; tbat George Eoy worked for tbe Carolina Truck Transportation Company, both before and after tbe accident, but tbat for several days before and several days after tbe plaintiff was injured, tbe said Eoy was not in tbe employ of tbe Carolina Truck Transportation Company, and tbat none of its trucks was in tbe vicinity of tbe accident at tbe time it occurred.

George Eoy testified tbat be was not in tbe employ of tbe Carolina Truck Transportation Company at tbe time of tbe plaintiff’s injury, and tbat tbe truck be was driving belonged to a man in Goldsboro who was looking for cotton bands; tbat be was accompanying bis driver in tbat section of tbe city where be thought such bands might be found; and tbat tbe Carolina Truck Transportation Company .bad nothing whatever to do with tbe truck which injured tbe plaintiff or with its driver.

Tbe usual issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of tbe plaintiff. Erom tbe judgment rendered thereon tbe defendant appeals, assigning errors.

'Ernest M. Green aind B. O’Hara for plaintiff.

Moore & Dunn for defendant.

Stacy, C. J.,

after stating the case: It is questionable as to whether the evidence is sufficient to show that the truck which injured the plaintiff belonged to the defendant, Carolina Truck Transportation Company, and that the driver of the truck was about the business of said defendant at the time of the injury; but, however this may be, and conceding for the moment that such inferences are permissible,r still we think the plaintiff has failed to make out a case of liability against the corporate defendant, in that, no evidence has been offered to show that the driver was acting within the scope of bis employment in taking the boys on the truck for a ride. Dover v. Manufacturing Co., 157 N. C., 324, 72 S. E., 1067. If the defendant Eoy bad invited the plaintiff to ride with him on other occasions, there is no evidence that the corporate defendant knew it. In this respect Fry v. Utilities Co., 183 N. C., 281, 111 S. E., 354, is distinguishable.

It is neither alleged, nor shown by the evidence, that George Eoy, when driving for the defendant company, bad any authority, express or *711implied, to invite or to permit boys to ride on tbe defendant’s truck. Without suck authority, express or implied, the invitation of the driver, even if given, was apparently beyond "the scope of his employment, and it is well settled that the master, is not liable for the acts of his servant which transcend the legitimate "sphere of his employment and are not done in furtherance of the master’s business. Wilkie v. Stancil, 196 N. C., 794, 147 S. E., 296; Ferguson v. Spinning Co., 196 N. C., 614, 146 S. E., 597; Grier v. Grier, 192 N. C., 760, 135 S. E., 852; Bilyeu v. Beck, 178 N. C., 481, 100 S. E., 891; Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Daniel v. R. R., 136 N. C., 517, 48 S. E., 816.

Speaking to the subject in Sawyer v. R. R., 142 N. C., 1, 54 S. E., 793, the following was quoted with approval from Wood on Master and Servant, sec. 279, p. 535:

“The question usually presented is whether," as "a matter of fact or of law, the injury was received under such circumstances that, under the employment the master can be"said to have authorized the act; for if he did not, either in fact or in law, he cannot be made chargeable for its consequences, because not having been done under authority from him, express or implied, it can in no sense be said to be his act, and the maxim previously referred to (respondeat superior) does not apply. The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred or fairly implied from the nature of the employment and the duties incident to-it.”

'And, again, the same author, in section 307, says:

“The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By ‘authorized’ is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.”

To like effect is the following from Marlowe v. Bland, 154 N. C., 140, 69 S. E., 752: “An act is within the scope of the servant’s employment, where necessary to accomplish the purpose of his employment, and intended for that purpose, although in excess of the powers actually conferred on the servant by the master. The purpose of the act rather than its method of performance is the test of the scope of employment. But the act cannot be said to be within the scope of the employment merely because the injuries complained of would not have been committed without the facilities afforded by the servant’s relations to his master, nor because the servant supposed that he possessed authority to do the act in *712question.” See, also, Elmore v. R. R., 189 N. C., 658, 127 S. E., 710, and cases there cited.

Nothing was said in Misenheimer v. Hayman, 195 N. C., 613, 143 S. E., 1, or Hayes v. Creamery Co., 195 N. C., 113, 141 S. E., 340, both strongly relied upon by plaintiff, which, when properly applied, militates against our present position or is in conflict with any of the eases above cited. In the first, it is expressly stated that to hold the master liable for the tort of the servant, the plaintiff must show “that the driver of the truck was acting within the scope of his authority and in furtherance of his employer’s business,” citing as authority for the position: Freeman v. Dalton, 183 N. C., 538, 111 S. E., 863, and Clark v. Sweaney, 176 N. C., 529, 97 S. E., 474. In the second, the whole question was whether the prohibitory rule of the master had been so persistently and openly violated as to amount to its abrogation. If so, the master was deemed to' have had knowledge of its violation and to have acquiesced in its abrogation, thus impliedly authorizing the acts of the servant. Fry v. Utilities Co., supra.

On the record, we think the action against the Carolina Truck Transportation Company should be dismissed as in ease of nonsuit.