Appeal
from Superior Court, Harnett County; N. A. Sinclair, Judge.
Action
by Emery L. Miller and another against S. P. Wood, trading as
the Wood Grocery Company. Judgment for plaintiffs, and
defendant appeals.
No
error.
On
motion to nonsuit, evidence which tends to make for plaintiff
is to be taken in light most favorable to him, and he is
entitled to benefit of every reasonable intendment thereon
and every reasonable inference to be drawn therefrom.
This is
an action for actionable negligence brought by plaintiff
against the defendant to recover damages for a collision
between the plaintiff Emery L. Miller and one Emmit
Neighbors, alleged by plaintiffs to be a servant of defendant
and acting in the scope of his employment and about his
master's business, when he was injured in consequence of
the collision, on September 20, 1935, about 6 o'clock in
the afternoon Charlie Miller owned the automobile which Emery
L. Miller was driving at the time of the collision. The
defendant denied negligence, set up the plea of contributory
negligence, and denied that Emmit Neighbors was acting in the
scope of his employment and about his master's business
when the collision took place.
The
facts: Emmit Neighbors at the time of the trial was dead.
Prior to the collision Neighbors had worked at the plant of
defendant in Benson for more than five years. He lived about
three miles from the plant. In connection with the Wood
Grocery Company, he used his individual car and the
defendant's trucks. Sometimes when the trucks were not
busy he would use them; if they were busy, he used his own
car. His working hours were from 7 a. m. to 7 p. m., and
during ginning seasons he worked overtime. His duties took
him to other plants of Wood Grocery Company. The collision
took place on September 20, 1935, about 6:15 to 6:30
o'clock in the evening. The collision took place on the
streets in Benson and at the intersection of the street that
turns as one goes into the property of the defendant, where
Neighbors was working; the office of defendant being about 60
feet away. On the occasion he was driving his automobile for
the Wood Grocery Company. The collision occurred immediately
opposite the mill, during working hours. Neighbors was
superintendent of the mechanical line, a machinist, fixing
the machinery, parts of the gins, and mills, and having it
done, this included all of the mills of the Wood Grocery
Company numbering six, located at different places.
W. H
Brown testified, in part: "I was at Wood Grocery
Company's plant at the time of the wreck. Mr. Neighbors
had been doing some work in the mill, and we had to get up
some parts to send them to Princeton to Mr. Wood's gin
there. Mr. Phail is foreman. Mr. Neighbors was directing me.
We were to get some iron bolts and seven-tooth sprocket. We
had all of it except the sprocket and Mr. Neighbors had been
looking for that, and I helped him. We could not find it at
the plant. * * * Mr. Wood had a gin at Peacock's
Cross-Road that was not running. Mr. Neighbors went down
there to get the sprocket; he left in the afternoon. I did
not see him again until after the wreck. * * * Mr. Neighbors
was up there at the gin and he asked me if I would wait
around, and I went to the Neighbors car and got the 7-
tooth sprocket and three little set-screws that he got at
Peacock's Cross-Road. * * * Mr. Neighbors took the
sprocket to Princeton to Mr. Phail. I know this is the
sprocket that came from Peacock's Cross-Road because I
have been down there and saw right where it came from. Mr
Neighbors left the plant to go to Peacock's Cross-Road to
get the sprocket. I don't recall any time Mr. Wood was
present when Neighbors used his own automobile, but know a
time or two Mr. Wood came to the plant when Mr. Neighbors was
gone with it. The hands would use Mr. Neighbors' car when
we did not have anything else to drive. * * * I have made
trips in Mr. Neighbors' car in which he carried tools and
appliances. The last trip we took was to carry a fan shaft
and other materials to Pine Bottom gin, and put it on the
gin. The distance from Benson to Spivens Corner is about 25
miles, to Pine Bottom and Graydon Johnson's, about 12
miles each, and the Cross Roads about 6 miles. * * * Some of
the time all other conveyances would be out and we would get
a call to go to some other plant and Mr. Neighbors would say
'Get the tools and let's go.' And we would take
the tools and go on Mr. Neighbors' car. I have known this
to happen when Mr. Burgess was there. * * * Just about
everybody down there that drove a car used Mr. Neighbors'
car at times, during the time I was there. Sometimes to go up
town and get parts in that car. I have seen the bookkeeper
use it."
Nelson
Stuart testified, in part: "Mr. Neighbors would go on
his own car to the gin and up town for parts; sometimes to
the gin in Selma, and sometimes to a gin in Sampson County.
Most of the time he would go on his own car and sometimes he
went on the Company truck. Mr. Burgess was present on some of
these occasions. Mr. S. P. Wood would come to the plant every
evening during the week days in the fall. I don't know
whether Mr. Wood knew he was using his own car in connection
with Wood's business, but he was present where he could
see him doing it. I do not know of any order that was given
before the wreck about employees driving their individual
cars in connection with Mr. Wood's business. I didn't
have any such order. I have seen Neighbors get gasoline from
the Company pump when he would go to a gin some distance
away. The company has a gasoline tank on the premises."
Robert
Jernigan testified, in part:
"Mr.
Burgess was Superintendent of the Wood Grocery Company at
the time Emery L. Miller was injured and had been for a
number of years. Emmit Neighbors was a mechanic working for
Wood Grocery Company. He had the power to hire and
discharge employees, and did do so. W. H. Brown was
employed by the Wood Grocery Company as a mechanic at the
time Miller was injured. Mr. Neighbors would give Brown
instructions as to what to do. I was working at the cotton
gin at the time. I knew of one occasion when Neighbors went
on his car to the gin below Dunn and got a saw file for the
Wood Grocery Company, and have known him to go up town and
get parts to work around the gin. I know of no occasion
when he went off and did any work and used his car. In
connection with his mechanical duties, his work required
him to visit other plants and mills of Mr. Wood.
Q.
While you were there did Mr. Neighbors turn his car over to
you to go after anything; materials or things for the Wood
Grocery Company? Ans. Yes, sir. Mr. Wood was present at the
mill at that time. This was at...
