Altman v. Sanders, 609

• Decision Date: 04 May 1966
• Docket Number: No. 609,609
• Citation: 148 S.E.2d 21,267 N.C. 158
• Court: North Carolina Supreme Court
• Parties: Nola H. ALTMAN v. Ella Mae SANDERS and Robert Sanders.

Page 21

148 S.E.2d 21

267 N.C. 158

Nola H. ALTMAN v. Ella Mae SANDERS and Robert Sanders.

No. 609.

Supreme Court of North Carolina.

May 4, 1966.

Wilson & Bowen, Dunn, for plaintiff appellant.

Young, Moore & Henderson, by J. Allen Adams, Raleigh, for defendant appellees.

LAKE, Justice.

There has been no determination of the merits of this action. Thus, it has not been determined that Ella Mae Sanders was negligent in any respect, or that the plaintiff sustained an injury, or that, if she did, it was proximately caused by negligence of Ella Mae Sanders, or that the plaintiff was or was not contributorily negligent.

The judgment now before us for review dismisses the plaintiff's action against both defendants on the ground that even if Ella Mae Sanders was negligent in the operation of the automobile, if such negligence was the proximate cause of injuries to the plaintiff, if the plaintiff did not by her own negligence contribute to her injuries, and if Ella Mae Sanders was operating the automobile within the limits of the family purpose for which her husband, its owner, maintained it, the plaintiff may not recover either from Ella Mae Sanders or from her husband, Robert Sanders, by reason of the North Carolina Workmen's Compensation Act.

The pertinent provision of that Act is found in G.S. § 97--9, which reads as follows:

'Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for personal injury or death by accident to the extent and in the manner herein specified.'

Where, as is true of the Watson Company in the present case, the employer maintains insurance coverage, as specified in the above statute, an employee, who is subject to the provisions of the Workmen's Compensation Act and who sustains an injury, arising out of and in the course of his or her own employment, cannot maintain an action at common law against another employee whose negligence, while conducting the employer's business, was the proximate course of the injury. Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6. See also Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610.

In Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106, this Court said that the phrase, 'those conducting his (the employer's) business,' which appears in the above statute, should be given a liberal construction. One must be deemed to be conducting his employer's business, within the meaning of this statute, whenever he, himself, is acting within he course of his employment, as that term is used in the Workmen's Compensation Act. It is not necessary, in order to bring an employee within the protection of this statute, to show that his act was such as would have been imputed to the employer at common law.

In Davis v. Devil Dog Manufacturing Co., 249 N.C. 543, 107 S.E.2d 102, this Court held that when an employer maintains upon his premises a parking lot for the use of his employees, an employee, who arrives upon the lot at a reasonable interval prior to the time when he is to report for work and who is injured by an accident upon such lot while proceeding to the plant to report for duty, is entitled to compensation under the provisions of the Workmen's Compensation Act. In Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432, this Court likewise held that an employee, injured by an accident upon such parking lot while preparing to leave the premises within a reasonable time after the termination of his day's work, is entitled to compensation under the Act.

The plaintiff, having parked her car in the parking lot, maintained by her employer (Watson Company) upon its premises, approximately ten minutes prior to the time when she was required to be at her post of duty, was injured by an accident while walking to the plant to report for work, assuming she was injured as she alleges. Assuming these to be the facts, the plaintiff would be entitled to compensation under the Workmen's Compensation Act. That is, the plaintiff was in the course of her employment as that term is used in the Act when she was injured. It is equally true, however, that had Ella Mae Sanders sustained an injury in the same collision she also would have been entitled to compensation therefor under the Act. That is, Ella Mae Sanders was then in the course of her employment as that term is used in the Act. Consequently, even if Ella Mae Sanders was negligent in the operation of the automobile and such negligence by her was the proximate cause of injuries sustained by the plaintiff, the plaintiff may not maintain an action against Ella Mae Sanders on account of those injuries. Thus, the dismissal of the action against Ella Mae Sanders was proper.

It does not follow, however, that the plaintiff may not maintain an action against Robert Sanders. It is stipulated that he was the owner of the automobile, that it was a family purpose car and was being operated by Ella Mae Sanders, his wife, with his permission. In Lyon v. Lyon, 205 N.C. 326, 171 S.E. 356, Connor, J., speaking for the Court, said:

'It is well settled as the law in this state that, where a husband owns an automobile, which he keeps and maintains for use by his wife for her pleasure, and the wife, while driving the automobile, by her negligence causes injuries to a third person, such person may recover of the husband damages for his injuries. * * * The wife, as the driver of the automobile, is the representative of the husband, and although she is driving the automobile for her pleasure, is engaged in his business, while driving the automobile for the purposes of its ownership. The relationship between the husband and the wife, with respect to the automobile, is analogous to that of master and servant, or principal and agent, and not that of bailor and bailee.'

In Lynn v. Clark, 252 N.C. 289, 113 S.E.2d 427, Denny, J., later C.J., speaking for the Court, said:

'In our opinion, the mere allegation that a car owned by a defendant is a family purpose car is an insufficient allegation upon which to recover under the family purpose doctrine.

'Ordinarily, a cause of action based solely on the family purpose doctrine is stated by allegations to the effect that at the time of the accident the operator was a member of his family or household and was living at home with the defendant; that the automobile involved in the accident was a family car and was owned, provided, and maintained for the general use, pleasure, and convenience of the family, and was being so used by a member of the family at the time of the accident with the consent, knowledge, and approval of the owner of the car. (Citations omitted.) Allegations which, if proven, are sufficient to invoke the family purpose doctrine, are sufficient to establish agency.'

In the present case, the complaint is sufficient to meet the test so laid down in the Lynn case, but the stipulation, considered alone, is not so extensive. It...