Appeal
from Superior Court, Gaston County; N. A. Townsend, Special
Judge.
Action
by Earl Ferguson, by his next friend, J. F. Ferguson, against
the Rex Spinning Company. Judgment for plaintiff, and
defendant appeals. Reversed.
Employee
was not acting within scope of employment as regarded injury
to fellow employee by use of hose pipe with compressed air.
This is
an action for actionable negligence, brought by J. F
Ferguson, next friend of Earl Ferguson, his son, against
defendant.
Earl
Ferguson was a "doffer boy," 14 years of age
working in the twister room of defendant's cotton mill
under Whitey Barnes, a second hand who was over him. He was
performing his duties in a place he had a right to be. The
company furnished a hose with compressed air to Barnes, the
force of which was 110 pounds, and sufficient to blow grease
and lint off of frames in the cotton mill.
Earl
Ferguson testified: "Barnes slipped up behind me and
grabbed my arm and raised me clean off the floor with the
hose pipe. He grabbed my left arm, put the hose pipe to me
with his other arm and raised me off the floor. I felt the
air going in me and I grabbed his arm and I commenced sinking
to the floor, and that was all I knew until I woke up on the
spare floor."
The
issues submitted to the jury and their answers thereto, were
as follows:
"1.
Was the minor plaintiff injured by reason of the negligence
of the defendant, as alleged in the complaint? Answer: Yes.
"2.
Was the second hand, Whitey Barnes, at the time of the
injuries inflicted on the plaintiff, acting within the
scope of his employment? Answer: Yes.
"3.
What damage, if any, is plaintiff entitled to recover of
the defendant? Answer: $1,700.00."
Defendant
introduced no evidence, and at the close of plaintiff's
evidence made motion for judgment as in case of nonsuit. C.
S. § 567. The motion was refused; defendant excepted and
assigned error. Defendant also submitted the following prayer
for instructions: "If you believe the evidence as
testified to by the witnesses, you will answer the second
issue No." This was refused; defendant excepted and
assigned error, and appealed to the Supreme Court.
CLARKSON
J.
The
material question for our determination was whether Whitey
Barnes, under the facts and circumstances of this case, was
acting within the "scope of his employment"? We
cannot so hold.
The
law, as stated in 18 R. C. L. pp. 795, 796, is as follows:
"Acts impliedly authorized or such as are within the
scope of the employment--that is, wrongs for which the
employer may be held accountable--are not susceptible of
precise or even very helpful definition by any phrase or
short form of expression. Each case must be determined with a
view to the surrounding facts and circumstances-- the
character of the employment and the nature of the wrongful
act. Whether the act was or was not such as to be within the
employment's scope is ordinarily one of fact for the
jury's determination. But if the departure from the
employer's business is of a marked and decided character
the decision of the question may be within the province of
the court. 'Where a servant steps aside from the
master's business and does an act not connected with the
business, which is hurtful to another, manifestly the master
is not liable for such act, for the reason that having left
his employer's business, the relation of master and
servant did not exist as to the wrongful act. (Italics ours.)
But if the servant continues about the business of the
employer, adopts methods which he deems necessary, expedient
or convenient, and the methods adopted prove hurtful to
others, the employer is liable. *** (Page 800.) The rule,
however, established by the later authorities does not make
the responsibility of the employer depend on the question
whether an injury inflicted by the employee was wilful and
intentional or unintentional, but upon the question whether
the employee when he did the wrong acted in the prosecution
of the employer's business, and within the scope of his
authority, or had stepped aside from that business, and done
an individual wrong. These decisions assert that the employer
should be held responsible for the acts of his employee, when
done in the course of his employment with a view to the
furtherance of his employer's business, and not for a
purpose personal to himself, whether the same be done
wilfully and intentionally, or merely carelessly and
heedlessly."
The
injury...
