Johnson v. Lamb, 694

• Decision Date: 22 May 1968
• Docket Number: No. 694,694
• Citation: 161 S.E.2d 131,273 N.C. 701
• Parties: Annie R. JOHNSON v. Christine LAMB and Hazel's Beauty Center, Inc., a corporation.
• Court: North Carolina Supreme Court

Page 131

161 S.E.2d 131

273 N.C. 701

Annie R. JOHNSON v. Christine LAMB and Hazel's Beauty Center, Inc., a corporation.

No. 694.

Supreme Court of North Carolina.

May 22, 1968.

Haworth, Riggs, Kuhn & Haworth, High Point, by Walter W. Baker, Jr., and Robert L. Cecil, High Point, for plaintiff appellant.

Jordan, Wright, Henson & Nichols, Greensboro, and Fisher & Fisher, High Point, by G. Marlin Evans, Greensboro, for defendant appellees.

LAKE, Justice.

G.S. § 1--200 provides, 'The issues arising upon the pleadings, material to be tried, must be made up by the attorneys appearing in the action, or by the judge presiding, and reduced to writing, before or during the trial.' This provision is mandatory. It is the duty of the trial judge to submit such issues as are necessary to settle the material controversies as to facts arising on the pleadings. Rural Plumbing and Heating, Inc. v. H. C. Jones Construction Co., 268 N.C. 23, 149 S.E.2d 625; Stanback v. Haywood, 209 N.C. 798, 184 S.E. 831. Ordinarily, the form and number of issues to be submitted is a matter which rests in the sound discretion of the trial judge, it being sufficient that the issues be framed so as to present the material matters in dispute, to enable each party to have the full benefit to his contentions before the jury and to enable the court, when the issues are answered, to determine the rights of the parties under the law. General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459, 117 S.E.2d 479; Durham Lumber Co. v. Wrenn--Wilson Construction Co., 249 N.C. 680, 107 S.E.2d 538; O'Briant v. O'Briant, 239 N.C. 101, 79 S.E.2d 252; Griffin v. United States Life Insurance Co., 225 N.C. 684, 36 S.E.2d 225.

It is necessary to submit to the jury only such issues as arise upon the pleadings and are material to be tried. Cecil v. Henderson, 121 N.C. 244, 28 S.E. 481. An issue arises upon the pleadings when a material fact is alleged by one party and controverted by the other. G.S. § 1--196, G.S. § 1--198; Rural Plumbing and Heating, Inc. v. H. C. Jones Construction Co., supra. 'If a material fact alleged in the complaint is not denied by the answer, such allegation for the purpose of the action, is taken as true and no issue arises therefrom.' Strong, N.C. Index, 1st Ed., Pleadings, § 29. Accord: Rural Plumbing and Heating, Inc. v. H. C. Jones Construction Co., supra.

It is admitted in the answer that Miss Lamb was the employee of the corporate defendant and, in treating the plaintiff, was acting in the course of her employment. Consequently, upon the face of the pleadings, if Miss Lamb was negligent in the performance of this treatment her negligence would be imputed, as a matter of law, to the corporate defendant under the doctrine of respondeat superior, and it was not necessary to submit to the jury an issue upon the question of her employment.

There was also no error in the failure of the court to submit to the jury an issue with reference to the alleged failure of the corporate defendant to supervise its employee, Miss Lamb. While this failure is alleged in the complaint and denied in the answer, the controversy as to that fact was not material to the determination of the rights of the parties and, therefore, no issue with reference to it was necessary. A material fact is one which constitutes a part of the plaintiff's cause of action or of the defendant's defense. Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16. If an employee is negligent while acting in the course of employment and such negligence is the proximate cause of injury to another, the employer is liable in damages under the doctrine of respondeat superior, notwithstanding the fact that the employer, himself, exercised due care in the supervision and direction of the employee, the employee's violation of instructions being no defense to the employer. Gillis v. Great Atlantic & Pac. Tea Co., 223 N.C. 470, 27 S.E.2d 283, 150 A.L.R. 1330; West v. F. W. Woolworth Co., 215 N.C. 211, 1 S.E.2d 546. Conversely, failure to instruct or supervise an employee does not impose liability upon the employer if, in fact, the employee was guilty of no negligence in the performance of his work. In such event, the omission of instructions or supervision, assuming a duty to supply them, would not be a proximate cause of the injury. In 35 AM JUR, Master and Servant, § 548, it is said:

'Liability to a third person for the act of an employee, if any, must be predicated upon the wrongful act or omission of the employee at the time of the infliction of the injury complained of, or at least upon an act or omission which in the case of an experienced or competent person would have been wrongful. If the employee has done no such act or omission, there is no liability on the part of the employer, however inexperienced, incompetent, and unfit for their tasks the defendant's employees may have been. Any common-law liability on the part of the defendant to a third person must find its basis in negligent conduct on the part of its servant or servants. It cannot rest upon their want of qualification for their task alone.'

Chapter 88 of the General Statutes provides for the licensing of apprentice cosmetologists and registered cosmetologists. G.S. § 88--11 prohibits a registered apprentice from operating a cosmetic art beauty shop, limiting the right of such apprentice to practice of the trade 'under the direct supervision of a registered managing cosmetologist.' It was not the intent of this staute to impose upon the employer of an apprentice cosmetologist a duty, owed to customers of the establishment, to stand at the side of the apprentice and personally direct each act performed in the rendering of each service to each customer. The act does not alter the common law rules governing the liability of the employer of an apprentice cosmetologist for the consequences of the employee's acts in the course of her employment. Consequently, the presence or absence of supervision of Miss Lamb by the corporate defendant, through its other employees, is not a material part of the plaintiff's cause of action or of the defense of the corporate defendant and no issue upon that controversy need be submitted to the jury and no instruction to the jury concerning such supervision, or lack of it, was required.

We do not have here the case of a customer, patient or client contracting for the professional services of the owner of an establishment and, without his or her knowledge, being turned over to an employee for treatment, nor do we undertake to determine the rights of a person injured under those circumstances. The beauty salon being owned by a corporation, the services of some person other than the owner were, of necessity, contemplated by the plaintiff when she contracted for the treatment in question. She knew of and acquiesced in the transfer of her treatment from Mrs. Wood to Miss Lamb.

Like the physician, or other person undertaking to perform professional services, the cosmetologist is not an insurer against injury from the treatment she undertakes to render, nor in she liable for the consequences of every error of judgment. In Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762, we said of a physician:

'(1) He must possess the degree of professional learning, skill and ability which other similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) he must use his best judgment in the treatment and care of his patient. (Citations omitted.) If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable.'

The same principle is applicable to the cosmetologist alleged to have caused injury to her customer in the course of treatment. 10 AM JUR 2 d, Barbers and Cosmetologists, § 16. Obviously, the proprietor of a beauty salon may not, by the assignment of a customer to an inexperienced apprentice, nothing else appearing, reduce the undertaking of the proprietor to bring to the performance of the service the degree of professional skill and ability ordinarily possessed by those engaged in the trade in the particular locality or area. If, however, the apprentice performing the service possesses such skill, exercises...