Jackson v. Mauney, 168

• Decision Date: 30 October 1963
• Docket Number: No. 168,168
• Citation: 260 N.C. 388,132 S.E.2d 899
• Parties: Howard B. JACKSON v. W. K. MAUNEY, Jr., and Carolina Throwing Company, Inc.
• Court: North Carolina Supreme Court

Page 899

132 S.E.2d 899

260 N.C. 388

Howard B. JACKSON v. W. K. MAUNEY, Jr., and Carolina Throwing Company, Inc.

No. 168

Supreme Court of North Carolina.

Oct. 30, 1963

McDougle, Ervin, Horack & Snepp, by Frank W. Snepp, Jr., Charlotte, for plaintiff appellee.

Mullen, Holland & Cooke, by James Mullen, Gastonia, for defendant appellant.

Robinson, Jones & Hewson, Charlotte, for defendant appellee.

RODMAN, Justice.

Carolina assigns as error the court's refusal to allow its motion for nonsuit.

Plaintiff alleges he was injured when Mauney, traveling at a high speed, negligently left the channel and entered a shallow cove. The boat grounded, pitching plaintiff into the windshield.

Plaintiff neither alleges nor offered evidence tending to show the grounding was due to a defect in the boat or to Mauney's incompetence. The negligence alleged is Mauney's failure to utilize the knowledge and skill he possessed. Carolina was not liable for plaintiff's injuries merely because it owned the vessel in which plaintiff was riding or because it permitted Mauney to use the boat. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Reich v. Cone, 180 N.C. 267, 104 S.E. 530; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Weatherman v. Ramsey, 207 N.C. 270, 176 S.E. 568; Parrott v. Kantor, 216 N.C. 584, 6 S.E.2d 40; Hawes v. Haynes, 219 N.C. 535, 14 S.E.2d 503; McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530; Grindstaff v. Watts, 254 N.C. 568, 119 S.E. 2d 784; Cohee v. Sligh, 259 N.C. 248, 130 S.E.2d 310.

The sole ground on which liability can be imposed on Carolina is the assertion that it is responsible for the acts of Mauney, its secretary.

A master or principal is liable for those acts of his servant or agent done in the performance of the work for which the servant or agent was employed. The relationship must 'exist between the wrongdoer and the person sought to be charged for the result of wrong at the time and in respect to the very transaction out of which the injury arose.' Creech v. National Linen Service Corp., 219 N.C. 457, 14 S.E.2d 408. Devin, C. J., quotes with approval in Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309, this statement taken from Tiffany on Agency: 'A servant is acting in the course of his employment, when he is engaged in that which he was employed to do, and is at the time about his master's business. He is not acting in the course of his employment, if he is engaged in some pursuit of his own.' If the servant or agent is acting outside the scope of his employment, the employer is not responsible. Lewis v. W. B. Lea Tobacco Co., N.C., 132 S.E.2d 877; Lindsey v. Leonard, 235 N.C. 100, 68 S.E.2d 852; Hinson v. Virginia-Carolina Chemical Corp., 230 N.C. 476, 53 S.E.2d 448; Salmon v. Pearce, 223 N.C. 587, 27 S.E.2d 647; Walker v. Manson, 222 N.C. 527, 23 S.E.2d 839; Smith v. Moore, 220 N.C. 165, 16 S.E.2d 701; McLamb v. Beasley, 218 N.C. 308, 11 S.E.2d 283; Puckett v. Dyer, 203 N.C. 684, 167 S.E. 43; United States v. Eleazer, 4 Cir., 177 F.2d 914; Manuel v. Cassada, 190 Va. 906, 59 S.E.2d 47, 18 A.L.R.2d 395; Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 92 N.E.2d 677, 18 A.L.R.2d 1363; Olender v. Gottlieb et al., 344 Ill.App. 552, 101 N.E.2d 622; Voytas v. United States, 7 Cir., 256 F.2d 786; 57 C. J.S. Master and Servant, § 570 and 35 Am. 4ur. § 553 and 554.

The evidence viewed in the light most favorable to plaintiff is sufficient to establish these facts: Plaintiff, vice president of Carolina, is also an employee of J. P. Stevens Co., in charge of its upholstering business; he lives in New York; he gives 95% of his time to Stevens and 5% to Carolina; Carolina manufactures and sells yarn; Stevens manufactures and sells cloth; Mauney was secretary and treasurer of Carolina; Carolina owned a motor boat which it 'used for the entertaining of customers, building of good will among the community, entertaining our employees and better relations with the employees of the plant, and employees and officers of the corporation'; the mill was on vacation during the week of 4 July 1960, 'everybody, except the watchman, was on vacation'; plaintiff, Mauney, and a Mr. Crawford decided to take a vacation that week; they went to Crescent Beach and were accompanied by their families. Plaintiff testified: 'We rented a house there and all of us paid for it. The purpose of this trip so far as I was concerned was for relaxation and recreation. * * * On July 9, when the accident...