Grier v. Grier

• Decision Date: 15 December 1926
• Docket Number: 456.
• Citation: 135 S.E. 852,192 N.C. 760
• Parties: GRIER v. GRIER et al.
• Court: North Carolina Supreme Court

135 S.E. 852

192 N.C. 760

GRIER v. GRIER et al.

No. 456.

Supreme Court of North Carolina

December 15, 1926

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by C. R. Grier, administrator of the estate of Mary Grier deceased, against Todd Grier and C. L. Etheredge. Verdict for plaintiff, and defendant Etheredge appeals. Reversed as to appealing defendant.

The plaintiff is administrator of Mary Grier, who was killed on the 8th day of September, 1924, on East Trade street in the city of Charlotte. Plaintiff's intestate was killed by being struck by an automobile driven by the defendant Todd Grier.

The evidence tended to show that, at the time plaintiff's intestate was struck and killed by Todd Grier, he was drunk and was operating the car in a careless and negligent manner. Indeed, he does not appeal from the judgment rendered. At the time of the injury, Todd Grier was employed by the defendant Etheredge, who was engaged in the automobile business and trading under the name of Etheredge Motor Sales Company. The defendant Grier had been employed by said Etheredge a little over a year as an automobile salesman. He was working on a commission basis, and was paid on the actual cars sold. If no cars were sold by said salesman, he received no compensation. The defendant Etheredge furnished his said salesman a car "for demonstration purposes." The car used by the defendant Todd Grier at the time of the death of plaintiff's intestate was one which he had habitually driven as a demonstration car.

The defendant Grier testified:

"I would take a new car and drive it for a while and maybe I would sell it. I would get another car and drive it and sell it, and that is the way with this car I was driving. I had been driving this particular car which I was driving when I killed this old woman three or four months. I had been using it and going back and forth in it from the Etheredge Motor Sales Company place of business to my home, and also in going anywhere I wanted to go trying to make sales. I used it for hunting up prospects. It was not the only car I had to use. *** I had friends whose car I used, but I would also use the company's car for any purpose. I kept the demonstration car at night at home in the garage at the place where I roomed on Torrence street. *** I had to ask permission first to take a demonstration car out. After a car had been assigned to me by Mr. Etheredge or Mr. Stone for a demonstration car I never had to ask permission after that to take that car out of the place of business. I drove it when and where I pleased."

The evidence was to the effect that on Saturday night the defendant Todd Grier left the place of business of his codefendant, Etheredge, at closing time, taking the demonstration car with him to his home. On Sunday morning at about 9 o'clock the defendant Todd Grier took said demonstration car to take his friend Dewey Hampton from Charlotte to his home at Taylorsville, about 30 miles beyond Statesville. The defendant Todd Grier testified:

"When I started out with Dewey Hampton that Sunday morning I did not have any idea at all of getting any liquor at Dewey's house. *** I went to take Dewey home."

In a short while after arriving at Hampton's home some whisky appeared, and the defendant Todd Grier began drinking freely, and in addition purchased a quantity of whisky to take back with him to Charlotte in the car. The defendant was very much under the influence of whisky on his return trip and testified:

"When I came to Monday morning I was in my car. I had my tire repaired just before dark Sunday night. When I came to myself Monday morning and found myself in my car, I came on to Charlotte. *** If I went to the place of business of Etheredge Motor Sales Company after leaving the tire station, I did not know it. When I got to the tire station I was drunk. *** With reference to where I started after leaving that tire station, all I remember was coming out of the tire station, and where I went I don't know. *** I have no recollection of striking that colored woman. *** I did not sell any automobiles on the trip to Statesville. I did not take any orders. I did not try to get any orders. The territory within which I ordinarily solicit orders while I was working for Mr. Etheredge was in the city of Charlotte, Mecklenburg county. *** I had no prospect in Statesville or Taylorsville or up in that locality."

The defendant further testified:

"If I had run upon a man who wanted to buy a car I would have taken the order."

And further:

"Nobody offered to buy. Q. But on the trip up before you got full of liquor, if somebody had offered to buy a car from you, you would have taken the order wouldn't you? A. For Monday, yes, sir."

There was evidence tending to show that during the trip the defendant Todd Grier took the Etheredge Motor Sales Company tag off the car and placed another tag thereon. There was no evidence tending to show that Grier was an incompetent driver or that he had ever been drunk or under the influence of whisky to the knowledge of his employer.

The codefendant Etheredge testified that he did not know that Grier was going to make the trip to Taylorsville, and would have objected if he had known it, and, further, that he did not know that his codefendant and employee drank prior to the killing of plaintiff's intestate.

The cause was submitted to a jury, and there was a verdict against both defendants.

The defendant Etheredge appealed, contending that he was not liable for the acts of his codefendant, Todd Grier, at the time of the killing of plaintiff's intestate.

C. H. Gover, of Charlotte, for appellant.

Cansler & Cansler and Henderson & Meyer, all of Charlotte, for appellee.

BROGDEN J.

The question is this: Is an employer of an automobile salesman who furnishes the salesman a car for demonstration purposes and permits the salesman to keep the car at night, liable for the negligent acts of said salesman in operating said car?

The answer to this question depends upon whether or not the salesman, at the time of committing the negligent act, was acting within the "scope of his employment." One of the leading cases in this state on the question of "scope of employment" is Sawyer v. Railroad, 142 N.C. 1, 54 S.E. 793, 115 Am. St. Rep. 716, 9 Ann. Cas. 440. Justice Hoke, quoting from Wood on Master and Servant, says:

"'The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred or fairly implied from the nature of the employment and the duties incident to it.'

...