Jackson v. Mauney, 260 N.C. 388 (1963)

Oct. 30, 1963 · Supreme Court of North Carolina

260 N.C. 388

HOWARD B. JACKSON v. W. K. MAUNEY, JR. and CAROLINA THROWING COMPANY, INC.

(Filed 30 October 1963.)

1. Boating—

Mere ownership of a boat does not impose liability for injury received by a passenger due to the negligence of the operator of the boat.

3. Master and Servant § 33—

The master or principal is liable for the acts of his servant or agent only when the servant or agent is engaged in the course of his employment at the time of ancl in respect to the very transaction out of which the injury arises, and if the servant or agent is acting outside the scope of his employment the employer or principal is not responsible therefor.

3. Same; Boating—

Evidence tending to show that a corporation maintained a boat for use in entertaining its customers and for entertaining and in furtherance of better relations between its employees, and that the injury in suit was inflicted on the corporation’s vice president, riding as a guest, by the negligent operation of the boat by the corporation’s secretary and treasurer while on a boat l'ide during vacation for pleasure, is held insufficient to be submitted to the jury upon the issue of respondeat superior, notwithstanding evidence of casual discussions of business among the parties during- the trip.

Appeal by defendant Carolina Throwing Company, Inc. from McLean, «/.,, March 29, 1963 Civil Session of ClevelaND.

Plaintiff instituted this action against W. K. Mauney, Jr., to recover compensation for personal injuries sustained while riding as a passenger im a motor boat negligently operated by Mauney.

Thereafter plaintiff sought and was granted permission to malee Carolina Throwing Company, Inc., hereafter Carolina, a defendant. The amended complaint reiterated the allegations of the original complaint with respect to the negligence of Mauney. Additionally plaintiff alleged the boat in which he was riding was owned and maintained by Carolina “for -the pleasure, enj oyment, entertainment, use and convenience of its employees . . .” Mauney was -secretary and treasurer of Carolina. He was operating the boat as agent of Carolina “within the course and scope of his employment .and with its knowledge, permission and 'consent for the purpose of affording pleasure, enjoyment and entertainment -to an employee of the defendant, Carolina Throwing Company, Inc., the plaintiff.”

Mauney filed an answer admitting all the allegations of the complaint except those relating to -his asserted negligence and the extent of the injuries sustained by plaintiff.

Carolina, in its answer, admitted that Mauney was its secretary, plaintiff, its vice president. It admitted it owned .the boat in which plaintiff was riding when he was injured. It denied the boat was being u-sed in the furtherance of its business alleging that the injury -occurred while plaintiff and -defendant Mauney were on a vacation and ware using the boat solely for their own pleasure.

When the case was-called for trial, the parties stipulated: (1) plaintiff was injured as -a result of Mauney’s negligence; (2) fair compensation for plaintiff’s injuries was $7,500.

To determine tee liability oí Carolina, .the .count submitted this issue: “Was tee defendant, W. K. Mauney, Jr., tee agent or employee of tee defendant, Carolina Throwing Company, Inc., and as such acting within tee scope ¡of his employment and in furtherance of his principal’s business .as .alleged in the complaint?” The jury answered in tee affirmative. It was .thereupon adjudged teat plaintiff recover of defendants tee .sum of $7,500 with costs. Carolina excepted and appealed.

McDougle, Ervin, Horack & Snepp by Frank W. Snepp for plaintiff appellee.

Mullen, Holland & Cooke by James Mullen for defendant appellant.

Robinson, Jones & Hewson for defendant appellee.

RodmaN, J.

Carolina assigns as error tee court’® refusal to. allow its motion for nonsuit.

Plaintiff alleges he was injured when Mauney, traveling at a high speed, negligently left the channel and entered a .shallow cove. The •boat grounded, pitching plaintiff into the windshield.

Plaintiff neither alleges nor offered evidence tending to- show tee grounding was due to a defect -in tee boat or to Mauney’® incompetence. The negligence alleged iis Mauney’s failure to utilize tee knowledge and skill he possessed. Carolina was not liable for plaintiff’s injuries merely because it owned the vessel in which plaintiff was riding or because it permitted Mauney to. use tee boat. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Reich v. Cone, 180 N.C. 267, 104 S.E. 530; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Weatherman v. Ramsey, 207 N.C. 270, 176 S.E. 568; Parrott v. Kantor, 216 N.C. 584, 6 S.E. 2d 40; Hawes v. Haynes, 219 N.C. 535, 14 S.E. 2d 503; McIlroy v. Motor Lines, 229 N.C. 509, 50 S.E. 2d 530; Grindstaff v. Watts, 254 N.C. 568, 119 S.E. 2d 784; Cohee v. Sligh, 259 N.C. 248.

The isole ground on which liability cam be imposed on Carolina is tee assertion teat it is responsible for the acts of Mauney, its secretary.

A master or principal is liable for those act® of ¡hi® ¡servant or agent done in the performance of the work for which tee ¡servant or agent was employed. The relationship must “Exist between the wrongdoer and the person ¡sought to be charged for the result of the wrong at tee time ¡and in respect te' tee very transaction out of which tee injury ¡arose.” Creech v. Linen Service Corp., 219 N.C. 457, 14 S.E. 2d 408. Devin, C.J., quotas with approval in Travis v. Duckworth, 237 N.C. 471, 75 S.E. 2d 309, this ¡statement taken from Tiffany on Agency: “A servant is acting in the course ¡of his employment when he is- engaged in that which he is employed to< do, and is at tee time about his master's business. He is not acting in the course oí his 'employment, if he is engaged 'in some pursuit of his own.” If the servant or -agent is acting outside the scope of -his employment, the employer is not responsible. Lewis v. Tobacco Co., ante, 410; Lindsey v. Leonard, 235 N.C. 100, 68 S.E. 2d 852; Hinson v. Chemical Corp., 230 N.C. 476, 53 S.E. 2d 448; Salmon v. Pearce, 223 N.C. 587, 27 S.E. 2d 647; Walker v. Manson, 222 N.C. 527, 23 S.E. 2d 839; Smith v. Moore, 220 N.C. 165, 16 S.E. 2d 701; McLamb v. Beasley, 218 N.C. 308, 11 S.E. 2d 283; Puckett v. Dyer, 203 N.C. 684, 167 S.E. 43; U. S. v. Eleazer, 177 F. 2d 914; Manuel v. Cassada, 59 S.E. 2d 47, 18 A.L.R. 2d 395; Rogers v. Allis-Chalmers Mfg. Co., 92 N.E. 2d 677, 18 A.L.R. 2d 1363; Olender v. Gottlieb et al., 101 N.E. 2d 622; Voytas v. U. S., 256 F. 2d 786; Master and Servant, 57 C.J.S. s. 570 and 35 Am. Jur. s. 553 and 554.

The evidence viewed in the light most favorable -to plaintiff is sufficient to establish these facts: Plaintiff, vice -president of Carolina, is also am employee of J. P. Stevens Co., in charge of its upholstering busineiss; he lives in New York; he gives 95% of his time to Stevens and 5% to -Carolina; Carolina manufactures and sells yam; Stevens manufactures iamd sells cloth; Mauney was secretary and treasurer -of Carolina; Carolina owned a motor boat which it “used for the entertaining of customers, building of good will among the community, entertaining our -employees and better relations with the employees of the plant, -and employees and -officers of the corporation;” the mill was on vacation during the week -of 4 July 1960, “everybody, -except the watchman, was -on vacation;” plaintiff, Mauney, and a Mr. Crawford decided to take -a vacation -that week; -they went to Orescent Beach -and were accompanied by their families. Plaintiff testified: “We rented a house there and -all of us paid for it. The purpose of this trip so far as-1 was concerned was for relaxation, and recreation ... On July 9, when the accident -occurred, we were going up to Carolina Beach and up towards Wilmington, and up the Inland Waterway. We were not going to- do anything up there, it was just a pleasure (trip up the Inland Waterway ... As far as I was concerned, -all three -of us were taking the boat down there, Mr. Crawford, Mr. Mauney iand myself, so- we -could all use it -down there for -our own personal pleasure. And on the day when this accident happened, we were -all pleasure bent for o-ur own personal pleasure . . . Whether there was a -boat and vacation involved or not, I would go ahead and do my job to the best of my ability -regardless of whether I had a vacation with Billy and regardless -of whether I used the company .boat, I would give them the benefit of my advice- -and -help for whatever value it may be under any circumstances. So, it is true that actually using the boat and going on the vacation for recreation and relaxati-oa had nothing ¡to do with my attitude toward the corporation.” Plaintiff, when asked if during tire week he was on vacation he had any business discussions with Maurney, replied: “I answer I don't remember any specific -conversations but usually when we got together— ... I am sure we -did.” Defendant Mauney .testified that Carolina needed a yarn, salesman, .and ¡whi-le they were on vacation he and plaintiff discussed the employment -of a salesman recommended by plaintiff. There is nothing in the record to .indicate when these conversations with respect to employment of a salesman or any -other business matter took place. It appears unequivocally that the b-oat ride was for pleasure — not for business.

To hold that an employer is -liable for acts done by his employees while on vacation meanly because the employer provides them, with a means -of enjoyment, .and casual -discussions occur -among the vacationers with -respect to- the employer’s problems -during the vacation period would -stretch th-e doctrine of respondeat superior b-ey-ond its point o.f -elasticity.

We have announced we will not expand the “family purpose doctrine” to- include a -motor boat provided by a parent for -the enjoyment iand relaxation of members of his- family. Grindstaff v. Watts, supra. We perceive no- sound reason for imposing 'liability on -a corporation in -similar -circumstances.

The motion for nonsuit should have been allowed.

Reversed.