Creech v. National Linen Service Corporation

• Decision Date: 30 April 1941
• Docket Number: 450.
• Citation: 14 S.E.2d 408,219 N.C. 457
• Parties: CREECH v. NATIONAL LINEN SERVICE CORPORATION et al.
• Court: North Carolina Supreme Court

14 S.E.2d 408

219 N.C. 457

CREECH v. NATIONAL LINEN SERVICE CORPORATION et al.

No. 450.

Supreme Court of North Carolina

April 30, 1941

Civil action to recover damages for personal injuries allegedly resulting from actionable negligence of defendants.

On January 2, 1937, about 7:30 o'clock in the morning plaintiff was injured in a collision, at a street intersection in Raleigh, between an automobile owned and operated by him and one owned and operated by defendant Louis A. Carter.

Defendant National Linen Service Corporation, through one of its subsidiaries, known as Raleigh Linen Supply Company, was on and prior to said date engaged in the business of laundering linens, coats, aprons, etc., and furnishing the same to business firms and corporations in the city of Raleigh and elsewhere. Defendant Louis A. Carter was employed by said corporate defendant as a driver in delivery and "pick up" of linens in said city.

Plaintiff alleges in his complaint and on the trial below offered evidence tending to show that his injuries were proximately caused by the negligence of defendant Carter.

Plaintiff further alleges upon information and belief that at the time of said collision "defendant Louis A. Carter, under the order and direction of his employer, National Linen Service Corporation, was undertaking to make delivery of certain laundered coats, aprons, etc., and for that purpose was authorized and directed by his said employer to use his personal automobile".

This and other material allegations of the plaintiff are denied by defendant National Linen Service Corporation in its answer filed. Defendant Carter did not answer.

The trial below, in so far as pertinent to this appeal, revolved around the question as to whether at the time of the said collision the defendant Carter was acting in the line of duty and in the course of his employment by the said corporation.

As bearing thereon, defendant Carter, called by plaintiff and sworn as an adverse witness, testified to substantially these facts: That in January, 1937, he was employed by the Raleigh Linen Supply Company to "pick up and deliver" linen in the city of Raleigh; that his hours for work were from 5 o'clock in the morning "until however long it took to finish" his route, that is, that he had regular hour for reporting for duty in the morning, with "no specified hours of employment after reporting except to finish the job"; that he would load his truck in the morning, go out on one trip, making deliveries and pickups and come back in and get the rest of his load; that when he had reloaded the truck he would check out and go to breakfast; that on the morning of January 2, 1937, he reported for duty at 4:55 o'clock and worked until 7:32 at which time he said: "I got in my car and went to breakfast *** I went home to breakfast in my personal car. I was on the way to my home when this accident occurred. *** I did not go in my truck because it was not the company's policy. I know the general policy and custom about driving in my personal car and the company's trucks. It was not to use the personal car for deliveries *** I have never delivered any goods of the Raleigh Linen Supply Company in my personal car; I never knew any other driver to do it". And, again: "Taking this card, *** at 7:37 that morning I had my complete load for the day. I was getting ready to leave for breakfast * *, The second check means I received my complete load of linens from the linen room for the day". Then, in response to question from the court as to what he then did with the load, he answered: "Left my load in front of the plant and got in my automobile and went to breakfast". And, again: "It was my usual custom to go to breakfast in my private car, and when I came back to the plant I delivered in the company's truck". The witness further testified that all the drivers of the company wore uniforms; that he bought his own uniform; and that on the morning in question he had on a whipcord suit, consisting of pants, jacket and cap, identifying him as an employee of the Raleigh Linen Supply Company.

Plaintiff further offered evidence tending to show that immediately after the accident when plaintiff was placed in the car of defendant Carter to be taken to the hospital, there were some packages of linen, or something that looked like linen "in the foot of the car".

Plaintiff further offered evidence tending to show that while trucks were furnished by the company for that purpose, "it was the custom for the boys to make deliveries on the cars". One witness testified: "We would use the trucks unless we wanted to take it on our part and use the car. We were furnished trucks for that purpose. We were hired to drive the truck and the truck was there for that purpose, and when we used private cars we did it for our own convenience most of the time, but there were...