McLamb v. Beasley, 218 N.C. 308 (1940)

Oct. 30, 1940 · Supreme Court of North Carolina

218 N.C. 308

JAMES McLAMB and J. B. PARRISH v. CHARLES L. BEASLEY.

(Filed 30 October, 1940.)

1. Master and Servant § 31b—

Tbe master is liable for a negligent injury inflicted on a third person by the servant when the servant is acting in the course of Ms employment and is at the time about tbe master’s business, but is not liable for such injuries when the servant is acting outside of the legitimate scope of his authority and is engaged in some private matter of his own, it being necessary that the relation of master and servant exist at the time of, and in respect to the very transaction out of which injury arises.

3. Same—

As a general rule, the servant is not in the course of his employment while going to and returning from his work.

3. Automobiles § 34 — Evidence held insufficient to be submitted to the jury on the issue of respondeat superior.

Defendant’s truck driver, at the conclusion of the day’s work, drove to a nearby town where he drank some whiskey, and while driving from the town to his home, negligently ran into the rear of a wagon on the highway, causing injury to both plaintiffs. Plaintiffs’ evidence tended to show that defendant permitted the driver to keep or “store” the truck at his home at night and to use the truck in going to and from his work, but that there was ample parking space at defendant’s store affording equal protection for the truck, that the driver had on occasion made deliveries on the way home but that no deliveries were made on the night in question, that no deductions were made from the driver’s salary by reason of the fact that he was permitted to so use the truck, and defendant’s bookkeeper, as a witness for plaintiffs, testified that if anything had to be delivered after the store was closed the driver would have been called upon to make the delivery, but that he had never known the driver to be so called, but that the driver was permitted to so use the truck solely as a matter of personal accommodation. Held: The evidence relating to deliveries after the close of the store merely indicates the loyalty of the employees and in nowise supports the inference that the driver was permitted to take the truck home in order to be able to make such deliveries, and the evidence discloses that the use of the truck by the driver in going to and from his work was gratuitous and not a part of the contract of employment, and, there being no contention of liability on any ground other than respondeat superior, defendant’s motion for judgment as of nonsuit should have been granted.

Clakkson, J., dissenting.

Appeal by defendant from Thompson, J., at February Term, 1940, of JOHNSTON.

Civil actions to recover damages for alleged negligent injuries, by consent consolidated and tried together, as the two actions arise out of the same state of facts.

William Hood, while driving a truck along the Smithfield-Angier highway on the night of 18 February, 1939, negligently ran into the rear of a wagon in which the two plaintiffs were riding and injured both of them. Hood was employed as a handy man around the defendant’s store and was the regular driver of the delivery truck which he was using on the night in question. At the conclusion of the day’s work, Hood drove the defendant’s truck to Smithfield, there drank some liquor, and was on his way home when the accident occurred. He was drunk.

It is in evidence that Hood had customarily used the defendant’s truck in going to and from his home; that he lived about three miles from the defendant’s store; that he regularly kept the truck in his yard at night, and this with the knowledge and consent of the defendant; that the store furnished the gas and oil for the truck, and “there was usually enough in there for him to go home in the evening and come back in the morning”; that no deductions were made from his salary for the use of the truck; that Hood’s use of the truck in going to and from his home was purely a matter of accommodation and gratuity to him, and that the defendant in no way benefited therefrom. “There was plenty of parking space at the store to keep the truck,” where the other trucks were kept. “It was not more protected than it would have been down at the store.” Hood had been keeping the truck in his possession at night for five years. “That storage place was known to Mr. Beasley,” says the defendant’s bookkeeper. “I never did get any instructions to change the storage place. I have known Hood to make deliveries on his way home.” No deliveries were made on the night of the accident. The truck was empty at the time. The bookkeeper further testifies: “Hood’s employment was driving that truck. After he finished he was permitted to go home in the truck and come back to his work in the morning. The use of the truck after the store closed in going to his house was just purely a matter of permission and accommodation to him. . . . The use of the truck in going to and from his home was not for the accommodation of the store, but for William Hood’s sole and single personal accommodation.”

At the close of plaintiffs’ evidence the defendant moved for judgments ■of nonsuit. Overruled; exception. The defendant offered no evidence, but relied upon the testimony of his bookkeeper as offered by the plaintiffs.

From verdicts and judgments for plaintiffs, the defendant appeals, .assigning error.

Wellons •& Wellons and Douglass & Douglass for plaintiffs, appellees.

A. J. Fletcher, Franklin T. Dupree, Jr., J. C. B. Fhringhaus, and ■Chas. Aycock Poe for defendant, appellant.

Stacy, C. J.

Tbe single question presented by the appeal is the sufficiency of the evidence to carry the cases to the jury.

The plaintiffs contended with quite good fortune in the court below that Hood’s use of the truck under the circumstances was such as to warrant the inference that it was being driven to his home for storage or safe keeping during the night; that he was, therefore, about his master’s business at the time of the injury, and that plaintiffs are entitled to recover on the theory of respondeat superior.

It is true the defendant’s bookkeeper is led to speak of Hood’s yard as a storage place for the truck at nighttime, albeit there was plenty of room at the store where the other trucks were kept. In view of the same witness’ positive testimony that Hood’s use of the truck after closing hours in driving to his home was not for the benefit of the defendant but for “Hood’s sole and single personal accommodation,” we think it would be somewhat chimerical to say the truck was being operated for and on behalf of the defendant at the time of the collision. The compelling facts speak louder than the suggested inference. Harrison v. R. R., 194 N. C., 656, 140 S. E., 598. There was no more protection for the truck in Hood’s yard than at the defendant’s store. The same stars shine at both places.

It is conceded that unless Hood was engaged in the wtirk of the defendant “at the time of and in respect to the very transaction out of which the injury arose,” the plaintiffs are not entitled to recover. Liverman v. Cline, 212 N. C., 43, 192 S. E., 849; Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126; Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503; Tyson v. Frutchey, 194 N. C., 750, 140 S. E., 718; Grier v. Grier, 192 N. C., 760, 135 S. E., 852; Reich v. Cone, 180 N. C., 267, 104 S. E., 530.

It is elementary that the master is responsible for the tort of his servant which results in injury to another when the servant is acting in the course of his employment, and is at the time about the master’s business. D’Armour v. Hardware Co., 217 N. C., 568; Barrow v. Keel, 213 N. C., 373; Roberts v. R. R., 143 N. C., 176, 55 S. E., 509. It is equally well established that the master is not liable if the tort of the servant which causes the injury occurs while the servant is acting outside the legitimate scope of his authority, and is then engaged in some private matter of his own. Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820; Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 897; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137.

As a general rule the servant is not in the course of his employment while going to and returning from his work. This is essentially his own task. See Bray v. Weatherly Co., 203 N. C., 160, 165 S. E., 332, and eases there cited.

At present we are not concerned witb a case where the servant uses the master’s car in traveling to and from bis work as a part of bis compensation or in furtherance of the master’s business. Nor are we confronted witb a case where such use of the master’s car is for the benefit of the master as well as the servant. Williams v. R. R., 190 N. C., 366, 129 S. E., 816. A fair interpretation of the record reveals a case in which the servant is permitted to use the master’s truck in going to and from his home purely as a matter of accommodation to the servant. It is not the policy of the law to extend the legal relationship of master and servant, with its reciprocal duties and liabilities, to cover such a case. The gratuitous and permissive use by Hood of the defendant’s truck in traveling back and forth between his home and place of work, under the circumstances disclosed by the record, is not sufficient to warrant the inference that such use of the truck became by implication a part of the contract of employment. Distributing Corp. v. Drinkwater, 81 F. (2d), 200.

It was said in Hunt v. State, 201 N. C., 707, 161 S. E., 203, that “the employee is in the course of employment if he has a right to the transportation, but not if it is gratuitous, or a mere accommodation.”

A careful perusal of the whole record impels the conclusion that Hood’s use of the defendant’s truck on the night in question was for his own purposes, first, in going to Smithfield, and, second, in returning home. Wilkie v. Stancil, 196 N. C., 794, 146 S. E., 296. The defendant had no control over him at the time. Hood was his own master while driving home. This defeats recovery on the theory of respondeat superior. Martin v. Bus Line, 197 N. C., 720, 150 S. E., 501. The doctrine is inapplicable where there is no superior to respond. Standard Oil Co. v. Parkinson, 152 Fed., 681.

The plaintiffs stress the statement of the defendant’s bookkeeper that the truck was in Hood’s care at night, “and if anything should have to be hauled or delivered after the store was closed, we could get in touch with him and he would do it.” He added, however, that if Hood had ever been called after closing hours, he knew nothing of it. “Not in all the time I worked there did I ever know Hood to be called on during the night. He was simply working there, and we all felt, if an emergency arose, we were liable to be called on.” This evidence, in its entirety, expresses no more than a sense of loyalty on the part of all the employees of the defendant. It is to be commended rather than held for liability. It does not even carry the suggestion that Hood had the truck in order that he might be accessible after closing hours or at nighttime. Thus, on this record, to say that Hood was acting in the course of his employment at the time of the injury would be to tax the generosity of the defendant, and place the law at variance with kindly impulses and generous treatment.

Speaking to a similar situation in Gewanski v. Ellsworth, 166 Wis., 250, 164 N. W., 996, Rosenberry, J., delivering the opinion of the Court, said: “While it is true that fair and generous treatment on the part of the master is likely to produce a corresponding sense of loyalty on the part of the servant, it cannot be said that such treatment of a servant by a master in any way promotes or facilitates the master’s business in a legal sense. It is to the benefit of both master and servant that their relationship should be pleasant and harmonious, but the effort of the master to accommodate and assist the servant does not bring within the scope of the master’s employment acts of the servant otherwise without such scope.”

It is not suggested that plaintiffs are entitled to recover on any other theory. There is no evidence that Hood was a reckless driver or that his drinking was known to the defendant. Taylor v. Caudle, 210 N. C., 60, 185 S. E., 446.

There was error in overruling the defendant’s motion for judgments as in cases of nonsuit.

Reversed.

ClaeksoN, J.,

dissenting: The facts: It is charged by plaintiff that William Hood, at about 8:00 p.m. on 18 February, 1939, carelessly, recklessly, willfully and wantonly, while under the influence of intoxicating liquor, in operating a certain truck owned by defendant and acting in the scope of his employment, in violation of law, ran into the wagon driven by J. B. Parrish, in which plaintiff McLamb was a guest, knocking said wagon to the left across said road into the ditch and throwing said wagon on top of the mule, and knocking the plaintiff from said wagon violently to the ground, knocking out two of his front teeth, cutting an ugly wound in his lower lip, severely bruising and dislocating his right shoulder, wrenching his back, and lacerating and bruising the plaintiff in numerous places, severely and permanently. Like allegations were made by J. B. Parrish, except that he was driving the wagon. He was permanently injured. The cases were consolidated.

The first issue submitted to the jury: “Was the plaintiff injured by the negligence of' William Hood, an employee of the defendant, as alleged ?”

It was conceded by defendant that the evidence in the cases was sufficient for the jury to find an affirmative answer to the first issue, and defendant conceded that the jury could answer the issue in each case “Yes.”

The second issue: “If so, was said William Hood at the time of the alleged injury to plaintiff acting within the scope of his employment, as alleged in the complaint?”

On both issues the jury answered “Yes” and to the third issue assessed damages. The only question on this appeal: Was William Hood “acting within the scope of his employment ?”

The record discloses: “1. The plaintiffs were injured by the defendant’s truck. 'He was operating Mr. Beasley’s pick-up. ... I am familiar with the truck Hood was operating. . . . Mr. Beasley’s sign was painted on the truck.’ 2. The collision occurred on Saturday night around eight o’clock. 'I would say it was about 8 o’clock. I didn’t have any watch.’ 3. 'It was usually closed by 8 o’clock. That is what I say.’ 4. Hood was the regular driver of the truck that injured the plaintiffs. 5. Hood lived on the Angier Eoad, about three miles from defendant’s store. 6. The wreck occurred about halfway between defendant’s store and Hood’s home, and the truck was headed toward Hood’s home. I. Hood’s home was the regular storage place for the truck; and it was used by Hood daily in going to and from the store. 'This truck was kept at William Hood’s house at night. That is around three miles from where he works. He got to and from his work on this truck. I know that of my own knowledge. In going to and from work William Hood passed the road I live on every day. I didn’t notice what was in the truck that night.’ ” Another witness said: “I have seen it there early in the morning and late in the evening.” Another said: “I know he regularly went by my home night and morning on the truck. Early in the morning in time to go to work and late in the evening.” Another said: “Hood has been working for Mr. Beasley a good many years. . . . I have seen this truck at his home on numerous occasions at night.” The witness Whitley said: “He passed my residence with it regularly night and morning. In the morning he would be coming from toward home and going toward Beasley’s store. In the evening he would be coming from toward Beasley’s store and going in the direction of his home.”

W. Leon Johnson testified for plaintiff, in part: “On February 18, 1939, I was employed with C. W. Beasley & Son as bookkeeper and manager. William Hood was employed by Mr. Beasley. He was a truck driver. He drove the delivery truck and helped around the store, and did odd jobs around the store. He was the regular driver of that truck. Q. State whether or not he regularly kept that truck at his home at night. Ans.: Yes, sir, he has been keeping the truck. I have been working there for five years, and the truck was in his possession there every night. It was kept with Mr. Beasley’s knowledge and consent. There were no deductions made in the salary of William Hood for the gasoline and oil used in going from tbe store to bis borne and from bis-borne to tbe store. Tbe store furnished tbe gas and oil for tbe truck, and there was usually enough in there for him to go home in tbe evening and come back in tbe morning. I would not say that "William Hood was any more subject to be called at night than me or any of tbe rest of them, but the truck was in his care, and if anything should have to be hauled or delivered after the store was closed we could get in touch with him, and he would do it. Q. State whether or not William Hood at times continued to deliver after tbe closing of tbe store. Ans.: Well, most of tbe time I would leave tbe store — I would leave there thirty minutes oí-an hour before they would close tbe store, but just now and then I would be there when tbe store would close. And on several occasions be would be through delivering everything that was going except a few things maybe, that were going right out from the store up the road a little ways, and he would put them in the truck and take them as he would go on home. (Re-direct examination) Q. Where was tbe regular storage place of this truck, of this particular truck that was driven by William Hood during tbe night of February 18, 1939, prior thereto and subsequent thereto? Q. Tbe regular storage place at night for that truck? Ans.: Well, William Hood bad been keeping tbe truck at bis home. I bad been working there for five years; He bad been keeping tbe truck in bis possession all tbe time I was over there. That storage place was known to Mr. Beasley. I never did get any instructions to change the storage place. I have known Hood to make deliveries on his way home."

Tbe main opinion bases tbe nonsuit on tbe cross-examination of Johnson. Tbe main opinion does not give precisely what be said, and, interpreting rather than quoting from tbe record, says: “That Hood’s use of tbe truck in going to and from bis home was purely a matter of accommodation and gratuity to him, and that tbe defendant in no way benefited therefrom." Tbe actual language is: “Hood’s employment was driving that truck. After be finished be was permitted to go home in tbe truck and come back to bis work in tbe morning. Tbe use of tbe truck after tbe store closed in going to bis bouse was just purely a matter of permission and accommodation to him. There was plenty of parking space at tbe store to keep tbe truck. Q. Tbe use of tbe truck in going to and from bis home was not for tbe accommodation of tbe store, but for William Hood’s sole and single personal accommodation? Isn’t that right? Ans.: Yes, sir, I expect so.”

Tbe main opinion is a conclusion not supported by tbe record. Tbe witness Johnson said tbe use of tbe truck was “purely a matter of permission and accommodation to him,” and as to “sole and single personal accommodation” be wavered and was uncertain and said “I expect so.” This was a conclusion or supposition. He did not say it was a “gratuity to him,” nor did be say “tbat tbe defendant in no way benefited therefrom.” Conclusions on facts are not for tbe witness or tbis Court — tbey are matters for tbe jury to determine on all tbe faets and circumstances, based on both direct and circumstantial evidence. Tbe employee used tbe gas of defendant in going borne and returning, its cost was paid by defendant for five years, as is admitted by tbe record. Assuming six days, coming and going, 24 days a month, amounting in a year to 288 days, 5 years is 1,440 days, 6 miles a day would be 8,640, or more than one-third tbe distance around tbe world. Further estimating 15 miles to tbe gallon, and gas 20c a gallon, tbis would total $115.20. It is almost inconceivable tbat, under tbe faets of tbis case, tbe master “gave” to tbe servant as an outright gratuity tbe sum of $115.20.

Tbis payment of gas and tbe other evidence set forth makes it a matter for tbe jury to determine and not for us. Tbe court below gave defendant, on tbe testimony of Johnson, all and perhaps more from tbe Johnson testimony than defendant was entitled to. “As I told you, gentlemen of tbe jury, in order for tbe plaintiffs to sustain tbe burden which tbe law places upon them with respect to tbis second issue, and in order to entitle tbe plaintiff in either case to an affirmative finding on your part, tbe burden is upon tbe plaintiff in each case to satisfy you by tbe evidence and by its greater weight of tbe truth of bis contentions with respect to tbe second issue. Now, gentlemen of tbe jury, it is conceded tbat tbe motor truck in question was owned by Mr. Beasley, and tbat with bis permission it was used by William Hood in going to and from bis home, but Mr. Beasley would not be liable for any negligent operation of tbat motor truck on tbe part of William Hood if tbe motor truck was being used by William Hood solely for his own convenience and not as incidental to, or in aid of, tbe business of O. L. Beasley. Tbe employer’s liability, tbat is, Beasley’s liability, in cases of tbis kind depends upon whether tbe conveyance, tbat is, tbe motor truck in question, bad been provided by him after tbe beginning of employment in compliance with one of the implied or express terms of tbe contract of employment for tbe mere use of tbe employee William Hood, and one which tbe employee William Hood was required or as a matter of right was permitted to use by virtue -of tbat contract pursuant to tbat rule. William Hood would be in tbe course of bis employment if be bad a right to tbe transportation but not, gentlemen of tbe jury, if tbe transportation was gratuitous, a mere accommodation to him. Tbe defendant contends and says further tbat according to tbe testimony of plaintiff’s own witness, Mr. Johnson, who was employed at tbe store in February, 1939, was bookkeeper, tbat tbis truck was used by Hood only by bis, Beasley’s permission; tbat Johnson testified from tbe witness stand, when be was plaintiff’s witness, tbat tbe truck was used as a matter of pure accommodation, not to Beasley but to Hood, in order to allow bim to go back and forth from bis borne to bis work quicker and easier than be otherwise would have been able to have done; that it was for Hood’s pure accommodation and nothing else that be was permitted to use it. He says and contends, gentlemen of the jury, that you should accept Mr. Johnson’s version about that.”

This Court must stand by the ancient landmark — the jury — to determine the issue of facts, and should be slow to take from the jury facts as disclosed from this record.

The defendant did not testify, but at the close of plaintiff’s evidence made a motion for judgment as in case of nonsuit. C. S., 567. The motion was overruled and the cases were submitted to the jury. It is well settled in this jurisdiction that' the evidence is to be taken in its “most favorable light for plaintiff” and he is entitled to the benefit of every “reasonable intendment” and every “reasonable inference” to be drawn therefrom.

In Williams v. R. R., 190 N. C., 366, Stacy, C. J., writing the opinion, at p. 366, it is said: “Defendants earnestly contend that the nonsuit in favor of the Garysburg Manufacturing Company should be sustained and that the verdict in favor of the Atlantic Coast Line should be upheld, but we think there was more than a scintilla of evidence offered on the hearing tending to establish the plaintiff’s position as against both defendants, which was sufficient to carry the matters to the jury for its consideration and determination. . . . (pp. 367-8) The nonsuit in favor of the manufacturing company was allowed upon the theory that the truck in question has been borrowed by plaintiff’s intestate and was being operated under his direction and control at the time of the collision by one Connie Williams. Defendant contends that plaintiff’s intestate was engaged in transporting laborers from the Long Creek section to Burgaw on his own responsibility and that it was distinctly understood between them that no liability should attach to the defendant, manufacturing company, by reason of the use of its truck. There was evidence tending to support this view of the case. Plaintiff, on the other hand, takes the position that the laborers were being transported by the defendant manufacturing company, and for its benefit. As bearing on this phase of the case, Connie Williams testified as follows: U live at Long Creek, and Ed Williams lived at Long Creek. About 17 or 18 of us lived in the Long Creek section, about 9 or 10 miles from Burgaw. The Garysburg Company furnished the truck for us to go bade and forth home and back here to our work. Once a week I drove the truck for that purpose, every Saturday night and Monday morning. We had to come to Burgaw before we went to work, and were required to be there at 5 :30; then we got on the train and went in the woods, about 10 miles, where we were working. Saturday evening when we got back and got our pay we went borne on the truck. Ve all worked for the Garysburg Company. On this evening I got the iruclc out of the house near the office — the Garysburg Company exercised dominion over that property — and I drove it down here and got some gas, over at Mr. Davis’, did some shopping and started home. I did not pay for the gas, nor did anyone riding in the truck pay for it; it was charged to the company.’ Ve think this evidence was sufficient to carry the case to the jury under the principle announced in Tanner v. Lumber Co., 140 N. C., 475, and contended for by plaintiff in the present action, that where the master undertakes to furnish his laborers transportation to and from their work, it is his duty, in the exercise of ordinary care, to see to it that such transportation is rendered as reasonably safe as the character of it will permit. See note to Thomas v. Wisconsin C. R. Co., as reported in 23 L. R. A. (N. S.), 954, where the authorities on the subject are collected and reviewed by the annotator.” (Italics mine.)

In Fleming v. Holleman, 190 N. C., 449 (456), is the following: “W. L. Holleman testified: ‘1 used this car in going backward and forward. On this night in question I was driving a Ford that belonged to Armour & Company, which car I kept at my home. On 19 February, 1924, I drove this car toward my home. . . . Have been using it constantly since then. I only use this car on the company’s business. At the time of the accident I was on my way home.’ I think all the evidence on this phase sufficient to justify the court below in the charge as given. Williams v. R. R., ante, 366.” Mehaffey v. Construction Co., 197 N. C., 22.

Mere ownership of automobile does not render one liable for injuries from operation by another. Martin v. Bus Line, 197 N. C., 720. Owner loaning truck to another held not liable for injuries in collision without evidence that borrower’s driver was incompetent. Tyson v. Frutchey, 194 N. C., 750. In an action for injuries, caused by the alleged agent of defendant driving defendant’s automobile into plaintiff, the ownership of the automobile was evidence from which the jury might infer that it was being used in defendant’s business at the time of the injury. Freeman v. Dalton, 183 N. C., 538.

In West v. Baking Co., 208 N. C., 526, it appeared that the truck was being driven by defendant’s employee. This Court held there was sufficient evidence from which the jury could infer that the servant was acting within the scope of his employment. Adams v. Foy & Shemwell, 176 N. C., 695; Misenheimer v. Hayman, 195 N. C., 613; Phifer v. Dairy Co., 200 N. C., 65; Parrish v. Armour & Co., 200 N. C., 654; Lazarus v. Grocery Co., 201 N. C., 817; Edwards v. Loving, 203 N. C., 189; Dickerson v. Reynolds, 205 N. C., 770; Barrow v. Keel, 213 N. C., 373; Smith v. Gastonia, 216 N. C., 517, bolding that scope of employment Avas for the jury.

Evidence showing plaintiff was injured by negligent operation of truck, operated by regular driver pursuant to orders, made prima facie case against owner of truck. Lazarus v. Grocery Co., supra.

In the recent case of Smith v. Gastonia, supra (216 N. C., 517), at p. 519, Seawell, J., used this language: “The sole question in controversy here is as to whether the decedent was at the time of his injury and death in the exercise of any of the duties of his employment or in the enjoyment of its protection. Nothing else appearing, an employer is not liable fort accidents occurring to an employee while going to or returning from the employer’s premises in order to begin his work or after its conclusion, and an accident so occurring is not held to arise out of and in the course of the employment. Bray v. Weatherly & Co., 203 N. C., 160, 161, 165 S. E., 332, 94 A. L. R., 589. But the authorities seem to he uniform to the effect that where the employer furnishes the means of transportation to and from the place where the service is performed as an incident) to the contract of employment an injury suffered hy the employee while going to and from work is compensable” (italics mine), citing Phifer v. Dairy Co., supra; Jackson v. Creamery Co., 202 N. C., 196; Bellamy v. Mfg. Co., 200 N. C., 676; Parrish v. Armour & Co., 200 N. C., 654; Massey v. Board of Education, 204 N. C., 193, and cases cited.

We think the learned judge in the court below, under the authorities of this and other jurisdictions, took the correct view in refusing to grant the nonsuit requested by defendant, and that he also charged the jury correctly. The law, we think, is settled in favor of the position taken by the court below.

From other cases and text writers, the rule laid down is as follows: “The tendency of the courts is to enlarge the field of operation of the doctrine of respondeat superior. The doctrine is bottomed on the principle that he who expects to derive advantage from an act done for him by another should answer for any injury which a third person may sustain from the act. The rapid industrial and commercial progress of the times had brought about conditions which render it expedient in the interests of the community to extend the application of the rule that every man, in the management of his affairs, whether by himself or by his agents or servants, shall take care not to injure another, for only by imposing vicarious liability upon employers can vigilance be secured in the selection and supervision of employees to the end that those who are incompetent or reckless may be weeded out.” Elliason v. Western Coal & Coke Co., 202 N. W., 485, 162 Minn., 213.

“However, where a master places at tbe disposal of bis servant an automobile to be used bj tbe servant in going to and from bis work, and where tbe transportation is beneficial to both, tbe relation of master and servant continues while tbe automobile is used for such purpose; also if tbe employer, as an incident of contract, furnishes transportation, injury to employee going to and from place of employment ‘arises out of and in tbe course of employment.’ ” 5 Cyc. of Automobile Law and Practice (Blashfield), sec. 3041, pp. 197-8. Under tbe above section is cited Phifer’s Dependents v. Foremost Dairy, Inc., 200 N. C., 65, 156 S. E., 147. In that case, Adams, J. (citing a wealth of authorities), says, at pp. 66-7: “While there is diversity of opinion on tbe question, tbe weight of authority sustains tbe conclusion that if an employer furnishes transportation for bis employee as an incident of tbe employment, or as a part of tbe contract of employment, an injury suffered by tbe employee while going to or returning from tbe place of employment in tbe vehicle furnished by tbe employer and under bis control arises out of and in tbe course of tbe employment. . . . (p. 68) While tbe employee’s actual work began at a designated place, yet to go there was an act within and necessary to bis service.”

In 7-8 Cyc. of Automobile Law (Huddy), 9th Ed., sec. 94, at p. 251, we find: “Use to enable driver to reach work earlier. Where tbe employer permits tbe driver to use tbe machine to and from bis home in order that tbe driver may reach bis work earlier, it has been held that tbe relation of master and servant continues during such trips.”

In In re Hinton, 180 N. C., 206 (213), Walker, J., said: “Evidence of this kind was competent for tbe jury to consider, for when one can easily disprove a charge by testimony within bis control, and which be can then produce, and fails to do it, it is some proof that be cannot refute tbe charge.” In York v. York, 212 N. C., 695 (702), tbe above-is quoted and it is there said: “Tbe rule of the Hinton case, supra, has been repeatedly approved and followed in recent cases decided by this Court. See Walker v. Walker, 201 N. C., 183 (184) ; Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).”

Tbe charge of plaintiffs against defendant was to tbe effect that defendant’s driver permanently injured them in tbe course of bis employment by defendant. Tbe record indicates that defendant, charged with this wrong, sat by while having an opportunity to refute tbe charge as to whether it was true or not; tbe truth or falsity was peculiarly within defendant’s knowledge. Tbe fact that be did not deny tbe wrong done by bis driver was a “pregnant circumstance” for tbe jury to consider, as stated in opinion of this Court.

There is no denial that defendant’s driver bad the red pick-up truck, was employed to drive same, and habitually drove same with defendant’s name on it. He had driven the truck for five years with the knowledge and consent of defendant, from where he worked to his home each night and return with same each morning. The evidence indicates that he was subject to call after the store was closed. The truck was parked each night at defendant’s driver’s home and there was no garage at the place of business for the truck except in the open. The main opinion says, “The same stars shine at both places,” but they now shine on plaintiffs’ broken bodies which have suffered injuries admittedly caused by defendant’s driver while operating defendant’s truck in a drunken condition.

The defendant furnished the gas to the driver to go to and from his work. The gas alone amounted to some $115.20. Some $23.00 a year- — ■ perhaps the larger part of a month’s salary. The home of defendant’s driver was six miles from the place of work. The accident to plaintiffs took place about halfway between the place of work and the driver’s home, on the public highway. When the witness Johnson, introduced by plaintiff, was questioned on cross-examination, he would not deny in toto that the services of defendant’s driver were not in the course of his employment. His final answer was, “I expect so,” which implied an uncertainty as to whether the truck was being used as an accommodation to the defendant’s driver. There was plenary evidence, direct and circumstantial, for the jury to consider.

In the Law of Automobiles (Michie), North Carolina, sec. 131, at p. 381, it is written: “The question as to whether the servant’s or the employee’s act may reasonably be held within the scope of his employment is ordinarily one of fact for the determination of the jury, except where the departure from the master’s business is of marked and decided character.” (Italics mine.)

I see no error in the ruling of the court below.