Martin v. Line

• Decision Date: 20 November 1929
• Docket Number: (No. 331.)
• Citation: 150 S.E. 501,197 N.C. 720
• Court: North Carolina Supreme Court
• Parties: MARTIN . v. GREENSBORO-FAYETTEVILLE BUS LINE.

150 S.E. 501

(197 N.C. 720)

MARTIN .

v.GREENSBORO-FAYETTEVILLE BUS LINE.

(No. 331.)

Supreme Court of North Carolina.

Nov. 20, 1929.

Appeal from Superior Court, Durham County; Sink, Special Judge.

Action by Fannie Martin, administratrix of William A. Martin, against the Greensboro-Fayetteville Bus Line. Judgment for defendant, and plaintiff appeals. Affirmed.

Civil action to recover damages for an alleged wrongful death occasioned by defendant's bus striking plaintiff's intestate on Main street in the city of Durham, knocking him down and inflicting injuries from which he died.

The evidence discloses that on October 10, 1926, Lester Griffin, driver of one of defendant's Greensboro-Fayetteville busses, arrived in Durham at 6:45 p. m., about an hour late, due to heavy traffic on the road; that, after unloading his passengers, he carried the bus to King's garage, where the defendant stores its busses for the night, and asked that one of the tires, which had been punctured, be patched, so that he could leave next morning on schedule time; that Mr. King replied he was too busy to repair the tire—his full force not working on Sunday—and suggested that the bus be taken to Harris' garage for the needed repairs, which was done; that Griffin's wife and child met him at Harris' garage, and rode back with him after the repairs had been made; that, upon arriving at the storage garage, about 8:00 p. m., Griffin asked King, who had charge of storing the bus for the night, if he could send him and his family home, as he was about half sick, and was not feeling well; that King replied he had no available car, but that he might go in the bus, taking Clarence Bullock, an employee of the garage and a good driver, to bring it back; that in consequence of this suggestion, Bullock got in the bus and rode with Griffin and his family to Griffin's home, when and where the bus was turned over to Bullock by Griffin; and that on his way back to King's garage Bullock ran into and killed plaintiff's intestate.

The evidence further discloses that Griffin, the regular driver of the bus, was under positive instructions from the defendant not to use the bus after reaching Durham, but to store the same for the night in King's storage garage, and Mr. King was to wire the defendant's manager in Greensboro whenever the bus arrived at his garage later than 6:30 p. m., so that the delay might be investigated: and that the use of the bus from the time it reached the storage garage until its scheduled departure on the following morning was unauthorized, and without the knowledge, consent, or acquiescence of the defendant or any of its agents.

From a judgment dismissing the action as in case of nonsuit, the plaintiff appeals, assigning error.

Bryant & Jones, of Durham, for appellant.

John W. Hester, of Oxford, for appellee.

STACY, C. J. (after stating the case). [1, 2] When it is sought to hold one responsible for the neglect or tort of another, under the doctrine of respondeat superior, at least threethings must be made to appear, yea, four, and, upon denial of liability, the plaintiff must offer "some evidence which reasonably tends to prove every fact essential to his success." State v. Bridgers, 172 N. C. 879, 89 S. E. 804, 806.

(1) That the plaintiff was injured by the negligence of the alleged wrongdoer. Hurt v. Power Co., 194 N. C. 696, 140 S. E. 730.

(2) That the relation of master and servant, employer and employee, or principal and agent, existed, between the one sought to be charged and the alleged tort-feasor. Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096.

(3) That the neglect or wrong of the servant, employee, or agent was done in the course of his employment or in the scope of his authority. Ferguson v. Spinning Co., 196 N. C, 614, 146 S. E. 597; Fleming v. Knitting Mills, 161 N. C. 436, 77 S. E. 309.

(4) That the servant, employee, or agent was engaged in the work of the master, employer, or principal, and was about the business of his superior, at the time of the injury. Gurley v. Power Co., 172 N. C. 690, 90 S. E. 943.

It is elementary law that the master is responsible for the negligence of his servant which results in injury to a third person when the servant is acting within the scope of his employment and about the master's business. Roberts v. R. R., 143 N. C. 176, 55 S. E. 509, 8 L. R. A. (N. S.) 798, 10 Ann. Cas. 375. It is equally elementary that the master is not responsible if the negligence of the servant which caused the injury occurred while the servant was engaged in some private matter of his own or outside the legitimate scope of his employment. Bucken v. R. R., 157 N. C. 443, 73 S. E. 137; Doran v. Thomsen, 76 N. J. Law, 754, 71 A. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677.

It is further held that the owner of an automobile is not liable for injuries caused by it, merely because of ownership. Linville v. Nissen, supra. And it is well settled by numerous decisions, here and elsewhere, that "the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose." Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381, 383, 19 L. R. A. 285; Doran v. Thomsen, supra; Wilkie v. Stancil, 196 N. C. 794, 147 S. E. 296; Grier v. Grier, 192 N. C. 760, 135 S. E. 852.

In the instant case, it could hardly be said that Bullock was the servant of the defendant in bringing the bus back to the storage garage, or that Griffin was acting within the scope of his employment and about the defendant's business, when he took the bus to drive himself and family home. Cotton v....