“Tbe office of demurrer is to test tbe sufficiency of a pleading, admitting, for tbe purpose, tbe truth of tbe allegations of fact contained therein; and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted . . .,” Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. See also McCampbell v. Building & Loan Asso., 231 N.C. 647, 58 S.E. 2d 617, and cases there cited.
Tbe statute G-.S. 1-151 requires that “in tbe construction of a pleading for tbe purpose of determining its effect its, allegations shall be liberally construed with a view to substantial justice between tbe parties.” And tbe decisions of this Court, applying tbe provisions of this statute, bold that every reasonable intendment is to be made in favor of tbe pleader. A pleading must be fatally defective before it will be rejected as insufficient. See McCampbell v. Building and Loan Asso., supra, and cases cited.
Applying these principles to tbe allegations of tbe complaint in tbe present case, we are unable to say that in no view it fails to state a cause of aption against tbe defendant Fred Motley, Jr.
There is allegation that tbe automobile in question was in tbe possession and control of defendant Fred Motley, Jr., for bis use and enjoyment ; that defendant McLeese was driving tbe automobile as tbe servant and agent of defendant Fred Motley, Jr., and by bis direction; that defendant Fred Motley, Jr., was riding in tbe automobile; and that defendant McLeese not only willfully, wantonly, and recklessly assaulted plaintiff with bis fist, but so operated tbe automobile at unlawful rate of speed and wildly as to cause injury to plaintiff, and that by reason thereof plaintiff has suffered injury.
Tbe allegation is sufficient to support a finding that tbe relationship of master and servant, or of principal and agent, existed between defendant Fred Motley, Jr., and defendant McLeese.
And it is elementary that tbe master is liable for tbe acts of bis servant and tbe principal for tbe acts of bis agent, whether malicious or negligent, which result in injury to third persons, when tbe servant or agent is acting within tbe line of bis duty and exercising tbe functions of bis employment. Roberts v. R. R., 143 N.C. 176, 55 S.E. 509; Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446, and numerous other eases.
“A servant is acting in tbe course of bis employment, when be is engaged in that which be was employed to do, and is at tbe time about bis master’s business. He is not acting in tbe course of bis employment if be is engaged in some pursuit of bis own. Not every deviation from tbe strict execution of bis duty is such an interruption of tbe course of employment as to suspend tbe master’s responsibility. But if there is a total departure from tbe course of tbe master’s business, tbe master is no longer answerable for tbe servant’s conduct.” Tiffany on Agency 270, quoted in Dickerson v. Refining Co., supra.
*46“A master is civilly liable for an assault and battery by his servant on the third person if, and only if, it is committed while the servant is acting within the course and scope of his employment.” Ervin, J., in Hoppe v. Deese, 232 N.C. 698.
And as to the ruling of the Court in reference to the motion to strike, we are of opinion that the portion left in the complaint does not come under the ban of improper pleading. Hence the judgment from which appeal is taken is
Affirmed.