Harris v. Carter
| Decision Date | 26 March 1947 |
| Docket Number | 306 |
| Citation | 41 S.E.2d 764,227 N.C. 262 |
| Parties | HARRIS v. CARTER et al. |
| Court | North Carolina Supreme Court |
D L. Ward and W. B. R. Guion, both of New Bern, for plaintiff appellant.
R E. Whitehurst, George B. Riddle, Jr., and D. C. McCotter Jr., all of New Bern, for defendants, appellees.
This is an action to recover damages for injury alleged to have been caused to plaintiff's person and car by the negligent operation of a truck owned by the defendant Carter and driven by his co-defendant Creech.
It is alleged that the truck was driven by Creech 'with Carter's consent and within the scope of employment of the defendant D. D. Creech. ' It is sought to render Carter liable as employer of Creech under the rule 'respondeat superior.'
The answer denies that Creech was the employee or agent of Carter but avers that he was an independent contractor or a repair mechanic, doing a regular repair business, with whom the car had been entrusted or put in bailment for such repairs.
On the trial the plaintiff sought to establish the agency or relation of master and servant between Carter and Creech as growing out of instructions under which the offending truck was turned over to Creech. The pertinent testimony was as follows:
'* * * Mr. Carter said that how his truck came down there was that the truck was running bad and he sent it down there to Mr. Creech's garage by Mr. Brantley and told Mr. Creech to try the car out and see if he could find the trouble, that it was not running right. ' 'Mr. Carter said nothing more than he told me about sending his truck down to the garage and telling the driver to tell Mr. Creech to try the truck out and see if he could locate the trouble with the truck. ' ' 'Mr. Carter said he was sending a load of wheat to the mill.' 'Mr. Carter did not say the wheat was on the way to the mill when the accident happened. ' 'To repeat again just what Mr. Carter did say about the mill * * * he was sending it by Mr. Brantley--told him to go and carry the truck to Mr. Creech. ' 'I do not guess Mr. Creech had anything to do with carrying wheat to the mill.' 'He sent it down for Mr. Creech to fix.'
On demurrer to the evidence the trial judge allowed the motion to nonsuit and plaintiff appealed.
The plaintiff's case rests entirely on the significance to be given Carter's words to Creech while putting the truck in his hands for repairs: 'To try it out,' 'drive it,' 'locate the trouble and fix it. ' Plaintiff claims it is such an order or direction as would indicate Creech was an employee; or that it was at least evidence that Creech was put in charge of the operation of the truck as Carter's...
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