Bolin v. Bostic, 17595

• Decision Date: 15 December 1959
• Docket Number: No. 17595,17595
• Citation: 111 S.E.2d 557,235 S.C. 319
• Parties: Jesse R. BOLIN, Respondent, v. William N. BOSTIC, doing business as Southern Sewing Center, and Bruce L. Phipps, Defendants, of whom William N. Bostic, doing business as Southern Sewing Center is Appellant.
• Court: South Carolina Supreme Court

Page 557

111 S.E.2d 557

235 S.C. 319

Jesse R. BOLIN, Respondent, v. William N. BOSTIC, doing business as Southern Sewing Center and Bruce L. Phipps, Defendants, of whom William N. Bostic, doing business as Southern Sewing Center is Appellant.

No. 17595.

Supreme Court of South Carolina.

Dec. 15, 1959.

Milton Kligman, Columbia, J. Roy Berry, Johnston, W. Ray Berry, Columbia, for appellant.

McKay, McKay, Black & Walker, Columbia, for respondent.

OXNER, Justice.

This action was brought to recover damages to plaintiff's automobile resulting from a collision with another automobile owned and driven by defendant Bruce L. Phipps which occurred around eight o'clock on the morning of November 7, 1957. William N Bostic, doing business as Southern Sewing Center, was jointed as a co-defendant under the doctrine of respondeat superior. Phipps failed to answer and was adjudged in default. The trial resulted in a verdict for plaintiff against both defendants for $523.50. From the judgment entered thereon, Bostic has appealed.

The only exception we need consider is that which charges error on the part of the trial Judge in refusing appellant's motion for a directed verdict upon the grounds (1) that Phipps was an independent contractor and not his agent, and (2) that even if found to be an agent, Phipps was not acting within the scope of his agency or employment at the time of the accident.

The undisputed facts are: Appellant was engaged in the business of selling new and used sewing machines with his office on Blossom Street in the City of Columbia and territory extending throughout the State. About three weeks prior to the accident Phipps was employed as a salesman. During the first week he worked on a small salary at appellant's place of business where he was taught how to operate and demonstrate a sewing machine. After this training period, he was given a catalog and calling cards and went to work as a salesman on a commission basis with no fixed territory or hours of employment. He furnished his own car in which he carried a 'demonstrator' and paid his own traveling expenses, with no allowance for mileage or upkeep. He was at liberty to solicit business at any place or at any time within the State. The only requirement imposed by appellant was that before commencing work each morning, Phipps, and all other salesmen were to report at his place of business at 8:00 o'clock. Phipps never made a sale prior to the accident. Had he done so, he would have collected the down payment, and income taxes would have been withheld and Social Security payments deducted from his compensation.

On the morning of the accident, Phipps left his home in West Columbia for the purpose of reporting at appellant's office. The collision occurred as he crossed the Blossom Street bridge. After the accident the sewing machine in the car was turned over to another one of appellant's salesmen and Phipps never returned to work.

We need not decide whether Phipps was an agent or independent contractor. Assuming that the relationship between Bostic and him was that of principal and agent or master and servant, the testimony conclusively shows that he was not acting within the scope of his agency or employment at the time of the accident.

It is well settled that 'the liability of the master for the torts of his servant arises only when the servant is acting about the master's business, within the scope of his employment; if he is upon his own business acting outside of his employment the master is not liable.' McFadden v. Anderson Motor Co., 121 S.C. 407, 114 S.E. 402. We have said that 'an act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his employment and is in furtherance of the master's business.' Adams v. South Carolina Power Co., 200 S.C. 438, 21 S.E.2d 17, 19. These general principles govern in determining whether an employer is liable for the negligence of his agent or servant in driving an automobile. Holder v. Haynes, 193 S.C. 176, 7 S.E.2d 833. Our decisions are also uniformly to the effect that the mere fact that the employee uses his own motor vehicle does not relieve the employer from liability for negligence in driving the vehicle. If with the express or implied assent of the employer, such automobile is used by the employee in the discharge of his duties, the employer will be liable for any damage caused by his negligence while acting within the scope of his employment. Stevens v. Moore, 211 S.C. 498, 46 S.E.2d 73; Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44.

While we have had occasion from time to time to discuss the liability of an employer for workmen's compensation for injuries sustained by an employee while going to or returning from work, we have not, so far as our investigation discloses, had directly before us the question of the common law liability of an employer for damage or injury to a third party resulting from the negligence of an employee while driving his own automobile to and from work. In Lewis v. Trawick, 234 S.C. 415, 108 S.E.2d 680, we indicated that an employee was acting within the scope of his employment while driving his employer's truck in transporting other employees to work. There the employer had assumed the obligation to transport the employees to work, if they desired it, and furnished a truck and driver for that purpose. That case involved such a...