Landingham v. Singer Sewing Mach. Co, 524.
| Decision Date | 21 November 1934 |
| Docket Number | No. 524.,524. |
| Citation | 297 N.C 355,177 S.E. 126 |
| Court | North Carolina Supreme Court |
| Parties | VAN LANDINGHAM. v. SINGER SEWING MACH. CO. et al. |
Appeal from Superior Court, Mecklenburg County; Harding, Judge.
Action by Thomas Van Laudingham, Jr., by his next friend, Thomas Van Landingham, Sr., against the Singer Sewing Machine Company and another. From an adverse judgment, named defendant appeals.
Reversed.
This was a civil action instituted by the minor plaintiff, Thomas Van Landingham, Jr. by his next friend, for personal injuries alleged to have been proximately caused by the negligence of the defendant Russell while in the employment and in furtherance of the business of his codefendant Singer Sewing Machine Company. The defendants filed separate answers.
On the 15th day of May, 1930, the plaintiff, then a lad of about ten years of age, while on East Seventh street near the intersection of Alexander street, in the city of Charlotte, was struck by an automobile driven by the defendant U. R. Russell, and injured.
There was evidence tending to show that the injury to the plaintiff was proximately caused by the negligence of the defendant Russell as alleged in the complaint, and the jury so found. The jury also answered in the affirmative an issue reading as follows: "Was the defendant U. R. Russell at the time alleged in the complaint, acting within the scope of his employment and in the furtherance of the business of the Singer Sewing Machine Company?"
The court signed judgment in favor of the plaintiff against both defendants, and the defendant Singer Sewing Machine Company appealed, assigning errors.
J. Laurence Jones, of Charlotte, for appellant Singer Sewing Mach. Co.
Tom P. Jimison, G. T. Carswell, and Joe W. Ervin, all of Charlotte, for appellees.
Upon the plaintiff resting his case, both defendants moved to dismiss the action and for a judgment as of nonsuit, which motions were denied and the defendants excepted. Whereupon the defendant Russell offered evidence, including his own testimony, and his codefendant Singer Sewing Machine Company cross-examined Russell and the other witnesses introduced by him; and at the close of defendant Russell's evidence the plaintiff offered further evidence in rebuttal. Both defendants, when all the evidence was in, renewed their motions theretofore made to dismiss the action and for judgment as of nonsuit, and, upon the motions being denied, again noted exceptions.
The defendant Singer Sewing Machine Company did not at any time introduce evidence, and now contends it has the right, upon this appeal, to have its motion for a judgment as of nonsuit considered upon the evidence alone of the plaintiff offered prior to the evidence of its codefendant and rebuttalevidence of the plaintiff. This raises the interesting questions as to whether the corporate defendant's position is well taken in the first instance; and, if so, whether its right to have its motion so considered was waived by its cross-examination of the witnesses of its codefendant. However, we are not called upon to decide these questions, since we have reached the conclusion that the corporate defendant's motion for judgment as of nonsuit should have been granted whether the evidence taken after the plaintiff's resting his case be considered or not.
This court, in emphasizing the essentialness of establishing the fact that the employee was acting within the scope of his employment at the time of the injury, when it is sought to hold an employer responsible for an injury inflicted by the employee, says, in the case of Martin v. Bus Line, 197 N. C. 720, 721, 722, 150 S. E. 501:
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Johnson v. Causey, COA09-1712
...by a third person, the tortious act of the servant must be committed in the scope of his employment. Van Landingham v. Sewing Machine Co., 207 N.C. 355, 357, 177 S.E. 126, 127 (1934); see also Estes v. Comstock Homebuilding Cos., 195 N.C. App. 536, 540, 673 S.E.2d 399, 402 (2009) ("[T]he ma......
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PF Collier & Son Distributing Corp. v. Drinkwater
...v. Carolina Truck Transp. Co., 197 N.C. 709, 150 S.E. 505; Cole v. Funeral Home, 207 N.C. 271, 176 S.E. 553; Van Landingham v. Singer Sewing Machine Co., 207 N.C. 355, 177 S.E. 126. In the case last cited plaintiff was injured by an automobile driven by an agent of the sewing machine compan......
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Norvell Service Co. v. Spell
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