Liverman v. Cline

• Decision Date: 22 September 1937
• Docket Number: 30.
• Citation: 192 S.E. 849,212 N.C. 43
• Parties: LIVERMAN v. CLINE.
• Court: North Carolina Supreme Court

192 S.E. 849

212 N.C. 43

LIVERMAN v. CLINE.

No. 30.

Supreme Court of North Carolina

September 22, 1937

Appeal from Superior Court, Pasquotank County; G. V. Cowper, Special Judge.

Action by J. A. Liverman against F. D. Cline. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Civil action to recover damages for personal injuries alleged to have been caused by the wrongful act, neglect, or default of the defendant.

The defendant is a road contractor and in July, 1936, was engaged in building an asphalt road from Camden to Shiloh in Camden county. This road connects with state highway No. 30, a much-traveled highway.

On the night of July 13, 1936, while traveling on said highway plaintiff ran his automobile into the rear of a truck operated at the time by Ralph Gibbs. Gibbs was hauling sand at the time. He testifies without contradiction: "I was working for Mr. J. Brown Evans. He was the man who hired me. On the night in question I was hauling sand. * * * I had not done any night hauling before this particular time and I did not haul any after that night." It is in evidence that Ralph Gibbs, a truck driver, was on the defendant's pay roll as asphalt hauler, being paid by the hour, but was not paid by the defendant for hauling sand. As asphalt hauler he worked only in the daytime and not at night. It seems that the work of hauling sand from a nearby pit to defendant's asphalt plant was separate and distinct from that of hauling asphalt from the plant to the road construction project.

It is not in evidence as to who owned the truck Gibbs was driving. Clyde Mungo, who was likewise hauling sand that night testifies: "I had my own personal truck down there hauling sand. * * * I was working under Mr. LeRoy Chandler. He was the truck foreman for Mr. R. E. Fuller. R. E. Fuller paid me. * * * This was the only occasion that Gibbs and his truck worked at night. It was the only occasion that I worked at night."

LeRoy Chandler testifies: "On 13 July, 1936, I was truck foreman for R. E. Fuller, who is a contractor. * * * Mr Gibbs on that particular night was hauling sand for Mr Fuller."

The only evidence of negligence in the operation of the truck driven by Gibbs is that its rear light was not lighted at the time plaintiff ran into it. This evidence is strongly contradicted, and defendant elicited from plaintiff, on cross-examination, testimony tending to show that he was contributorily negligent.

From judgment of nonsuit entered at the close of all the evidence, plaintiff appeals, assigning errors.

Where one person is sought to be charged with negligence or wrongdoing of another, doctrine of respondeat superior applies only when relation of master and servant is shown to exist at time of and in respect to the very transaction out of which injury arose, and fact that wrongdoer was in general employment and pay of person sought to be charged at time of transaction does not necessarily make the latter chargeable.

J Henry LeRoy, Jr., and Thompson & Wilson, all of Elizabeth City, for appellant...