Daniel v. East Tenn. Pacing Co

• Decision Date: 16 June 1939
• Docket Number: No. 754.,754.
• Citation: 215 N.C. 762,3 S.E.2d 282
• Parties: DANIEL . v. EAST TENNESSEE PACING CO. et al.
• Court: North Carolina Supreme Court

3 S.E.2d 282

215 N.C. 762

DANIEL .

v.

EAST TENNESSEE PACING CO.

et al.

No. 754.

Supreme Court of North Carolina

June 16, 1939.

.

BARNHILL, J, dissenting.

Appeal from Superior Court, Forsyth County; Hubert E. Olive, Special Judge.

Action by G. W. Daniel against the East Tennessee Packing Company and another to recover damages for injuries. Judgment for plaintiff and defendants appeal.

Affirmed.

This is a civil action for actionable negligence brought by plaintiff against the defendants to recover damages. The defendants denied negligence. There was no plea of contributory negligence set up in the answer of the defendants, as plaintiff was a guest in the car driven by defendant J. G. Garner.

The case was tried before Oscar O. Efird, Judge, and a jury, in the Forsyth County Court. The issues submitted to the jury and their answers thereto were as follows:

"1. Was the defendant J. G. Garner, in operating the automobile described in the complaint, acting in the furtherance of and in the scope of his employment with the East Tennessee Packing Company, as alleged in the complaint? Answer: Yes.

"2. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint?

"A. As to the defendant, East Tennessee Packing Company? Answer: Yes.

"B. As to the defendant J. G. Garner? Answer: Yes.

"3. What amount of damages, if any, is the plaintiff entitled to recover? Answer: $1,000.00."

Judgment was rendered on the verdict by the Forsyth County Court. The defendants made numerous exceptions and assignments of error and appealed to the Superior Court; that Court rendered judgment as follows: "This case being heard in due course at the April Term, 1939, of the Court, on the appeal of the defendants from a judgment of the Forsyth County Court, in favor of the plaintiff, and the Court having heard the arguments ofcounsel and being of the opinion that each of the assignments of error of the defendants should be overruled and that the judgment of the Forsyth County Court should be affirmed; it is, Therefore, Ordered, Adjudged and Decreed that each of the assignments of error of the defendants is hereby overruled and that the judgment of the Forsyth County Court is hereby affirmed; that the costs of the appeal are hereby taxed against the defendants. Hubert E. Olive, Judge Presiding."

From this judgment the defendants made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Ratcliff, Hudson & Ferrell, of Winston-Salem, for appellants.

Walter E. Johnston, Jr., and Fred M. Parrish, both of Winston-Salem, for appellee.

CLARKSON, Justice.

At the close of plaintiffs evidence and at the conclusion of all the evidence, the defendants made motions in the Court below for judgment as in case of nonsuit. C.S. § 567. The Court overruled these motions and in this we can see no error. The evidence for plaintiff must be taken in its most favorable light. The charge of the Forsyth County Court is omitted from the record; it is therefore presumed to be correct.

The defendant, J. G. Garner, was an employee of the East Tennessee Packing Company at the time of the collision, Sunday, May 29, 1938. He was driving a 1937 Ford which had on each door an emblem, or insignia, of the East Tennessee Packing Company. The emblems had the picture of the State of Tennessee through a circle, with the word "Selecto", their brand name, on the sign, and "East Tennessee Packing Company" below. That car was the car which Garner used about his business in Winston-Salem in calling on the trade, including the Purity Market. He had been with the Company eight years and the firm did a wholesale business, selling meats. The plaintiff was manager of the Purity Market, in Winston-Salem, and bought products from the defendant Company through Garner. When Garner came to get his usual order he told plaintiff that he had to go to Charlotte the next day to see the salesman of the East Tennessee Packing Company over there on some company business, and asked plaintiff if he would like to go. Garner had been selling plaintiff meat, as manager of the Purity Market, for sometime, about twice a week.

We think the evidence was sufficient to be submitted to the jury that Garner, at the time of the collision, was an employee of the East Tennessee Packing Company, in the scope of. his employment, and about his master's business. The jury so found and the presumption is that the trial Judge charged correctly on this aspect. Misen-heimer v. Hayman, 195 N.C. 613, 143 S. E. 1; Puckett v. Dyer, 203 N.C. 684, 167 S.E. 43; Jackson v. Scheiber, 209 N.C. 441, 446, 184 S.E. 17.

In Robinson v. McAlhaney, 214 N.C. 180, 182, 183, 198 S.E. 647, 649, speaking to the subject, it is said: "The master is liable for the negligence and for the malicious torts of his employee whenever such wrongs are committed by the employee in the course of his employment and within its scope. Ange v. Woodmen, 173 N.C. 33, 91 S.E. 586; Jackson v. Telephone Co., 139 N.C. 347, 51 S.E. 1015, 70 L.R.A. 738; Munick v. Durham, 181 N.C. 188, 106 S. E. 665, 24 A.L.R. 538. The decisive question is: 'Was the agent's act in the course of his employment and whilst about the master's business?' No ironclad test can be given, but in all cases the question whether the act was committed by the servant in the service of his employer or for his own purpose is one for the jury in view of all the circumstances. Wood, Master and Servant, 594; Hussey v. R. R., 98 N.C. 34, 3 S.E. 923, 2 Am.St.Rep. 312; Daniel v. R. R., 117 N.C. 592, 23 S.E. 327, 4 L.R.A..N.S., 485. The master is not liable for the resulting damage when his servant steps aside from the master's business to commit a wrong not connected with his employment, " citing authorities.

In York v. York, 212 N.C. 695, 699, 194 S.E. 486, 489, we find: "In Harper v. R.R., 211 N.C. 398, 402, 190 S.E. 750, 752, citing many authorities, it is said: 'It is well settled in this jurisdiction that negligence on the part of a driver of a car will not ordinarily be imputed to another occupant unless such other occupant is the owner of the car and has some kind of control over the driver. They must be engaged in a joint enterprise or joint venture. Automobile driver's negligence isnot, as a general rule, imputable te a passenger or guest." At page 703 of 212 N.C, 194 S.E. at page 491, quoting from Al-britton v. Hill, 190 N.C. 429, 430, 130 S.E. 5, it is said: "'In reference to concurrent negligence we have held that, where two proximate causes contribute to an injury, the defendant is liable, if his negligent act brought about one of such causes. Mangum v. Railroad Co., 188 N.C. 689, 125 S.E. 549 * * * Wood v. Public Corp, 174 N.C. 697, 94 S.E. 459, 1 A.L.R. 942; Harton v. Telephone Co, 141 N.C 455, 54 S.E. 299."

Plaintiff and Garner, a defendant and the employee of the East Tennessee Packing Company, left Winston-Salem for Charlotte on the evening of May 29, 1938, about 2:30 o'clock. It was raining. When about eight miles South of Lexington, going towards Salisbury, they had a collision with what is known as the "Byerly" Dodge car. Mrs. Andrew Byerly testified in part: That she spoke to Garner after the collision: "I said, 'Was you in the wreck?' and he said 'Yes, I was in the wreck.' I said, 'Well, who was the fault of it?' He said, 'It could have been me; I expect it was me, ' and then he said he saw the car slipping. He said 'I could have stopped.' Q. Is that all he said? Ans: 'And I thought I could pass it', that's what he said. He said 'I thought I could pass by it.' When he talked about stopping, he said, 'I could have had stopped.' Q. Which car did he say he saw slipping? Ans: My daughter's car. (Corinna Byerly). Q. What was it ...