Lindsey v. Leonard, 744
Decision Date | 01 February 1952 |
Docket Number | No. 744,744 |
Citation | 68 S.E.2d 852,235 N.C. 100 |
Court | North Carolina Supreme Court |
Parties | LINDSEY et al. v. LEONARD et al. |
J. Elmer Long, Graham, Thos. C. Carter, Burlington and Clarence Ross, Graham, for plaintiff-appellant.
Smith, Sapp, Moore & Smith, Greensboro, for defendant-appellee.
There is some evidence of negligence and of causative relation between the operation of the automobile by Leonard and the injury sustained by Lindsey, but the quantum of evidence on these points is not the pressing question here.
Plaintiff seeks to recover of the defendant, Burnette Home Supply Company, on the doctrine of respondeat superior for injuries sustained by her intestate in the accident. The Company denies all the essential allegations of the complaint. Plaintiff is, therefore, put to proof of every fact necessary to support her cause of action. This raises the question, is there evidence sufficient to warrant a submission of the case to the jury on the theory of liability under the doctrine of respondeat superior?
The record discloses that there was a contract between Leonard and the Company under the terms of which goods were consigned to Leonard by the Company to be sold on a commission basis. Leonard owned and used his own automobile. The Company furnished no transportation, paid for no expenses incident to the operation of his car, and had no control over him or his employees. There is no evidence tending to show that at the time of the injury to plaintiff's intestate Leonard was attempting to sell any goods for himself, the Company, or anybody else.
'Carter v. Thurston Motor Lines, 227 N.C. 193, 41 S.E.2d 586, 587.
Plaintiff based an exception upon the court's refusal to receive from the answer of Burnette Home Supply Company the following language: 'that during the times alleged in the complaint there was existing between E. G. Leonard and Burnette Home Supply Company a contract whereby the said E. G. Leonard was to sell goods and merchandise for Burnette Home Supply Company on a commission basis.' This language does not tend to prove the existence of a relationship of master and servant or employer and employee. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137. It is of no probative value to the plaintiff and therefore irrelevant and properly excluded.
Plaintiff also excepted to the court's failure to allow her to introduce from the answer of Leonard this...
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...Power and Light Co., 620 S.W.2d 718, 720 (Tex.Civ.App. 1981) (master must have control over acts of servant) with Lindsey v. Leonard, 235 N.C. 100, 68 S.E.2d 852 (1952) and United States v. Eleazer, 177 F.2d 914 (4th Cir. 1949) (in the absence of the right and power to command or direct the......
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...to the very transaction out of which the injuries arose. Jackson v. Mauney, 260 N.C. 388, 132 S.E.2d 899 (1963); Lindsey v. Leonard, 235 N.C. 100, 68 S.E.2d 852 (1952); Graham v. Gas Co., 231 N.C. 680, 58 S.E.2d 757 (1950). See also Southerland v. R.R., 148 N.C. 442, 62 S.E. 517 (1908). Whi......
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