Parrott v. Kantor

• Decision Date: 13 December 1939
• Docket Number: 525.
• Citation: 6 S.E.2d 40,216 N.C. 584
• Parties: PARROTT et al. v. KANTOR et al. MARTIN v. SAME.
• Court: North Carolina Supreme Court

6 S.E.2d 40

216 N.C. 584

PARROTT et al. v. KANTOR et al.

MARTIN v. SAME.

No. 525.

Supreme Court of North Carolina

December 13, 1939

Two civil actions from alleged wrongful death resulting from the same accident, C.S. §§ 160 and 161, consolidated for the purpose of trial only, and tried upon separate issues.

The intestates of plaintiff in each action, while together riding a bicycle on N. Brevard Street in the city of Charlotte, were stricken and killed by an automobile on 21 August, 1936. Plaintiffs each allege wrongful death of intestate respectively, resulting from actionable negligence of defendant Albert Grant, in the operation of the automobile which struck intestates, and that the automobile was owned by defendant Irving Kantor and, at the time, was being operated by defendant Albert Grant with the consent and permission and as agent and servant of said Irving Kantor. Defendant Irving Kantor, answering for himself alone, denies the material allegations. Defendant Albert Grant has not filed answer.

Upon the trial below, in addition to issues as to negligence of defendant Albert Grant, and of damages, the court submitted this as the second issue in each case: "II. If so, was Albert Grant, at the time of the alleged injury and death of the plaintiff's intestate, the agent and employee of the defendant Irving Kantor, and at said time acting within the scope of his employment?"

Bearing upon said second issue, several persons, who stated that they were present in the criminal court at the trial of Albert Grant, were examined as witness for plaintiff. The following covers the scope of their testimony in this respect:

J E. Martin, father of Agnes Lee Martin, testified: That he heard both Mr. Kantor and Albert Grant testify; that Mr Kantor testified that "he got this boy, Albert Grant, to drive two passengers to Spartanburg to catch an airplane. It was *** Mr. Kantor's car *** He said he told Albert Grant to bring the car back and park it at the rear of 115 1/2 S. Church Street, at the sporting goods place, and *** to turn the key over to the man in charge ***". On cross examination the witness Martin further testified: "Spartanburg is about 72 miles south of Charlotte *** 115 1/2 S. Church Street is on the first block of Church Street south of Trade Street. My daughter was killed north of Charlotte, about 2 miles from the Square." Then, without objection by defendant Kantor, the witness further testified that Grant testified "that he went to North Charlotte to see his people, his family--mother and father. Grant's family lived up there *** I don't know whether he went out there before he went back or not *** My understanding was that Grant had went around by North Charlotte and was coming in. It wouldn't be necessary to go through North Charlotte to go to Spartanburg, but he could have. He had been to Spartanburg, but he was coming back in, as I understand. It would not have been necessary to come from Spartanburg by way of North Charlotte." Then, on re-direct examination, the same witness testified without objection: "At the time he ran over the children he was coming in to put the car where he was instructed to put it, at the rear of that sport goods place *** He testified that he was on the way to put the car behind the Sportland as he was instructed to do."

Mrs. W. C. Parrott, mother of Helen L. Parrott, deceased, testified that she heard Mr. Kantor testify that "it was his automobile. *** He said he had Albert Grant to take two friends of his to Spartanburg, to catch a plane at that time, that Albert Grant was employed by him."

Mrs. W. W. Timmin, upon re-direct examination, in answer to question, "Did you hear Grant state at the time he hit these children where he was going?" replied: "Well, he was going, he went to North Charlotte when he got back to town, I reckon." Then in answer to the question, "At the time he hit the children, which way was he going?" she replied: "He was going towards town. At the time he hit the children he was going to put the car behind the 'Sport'. He was on his way to do that at the time he hit the children". Then on re-cross examination she testified: "He (Grant) said he went to North Charlotte to see his people, and that he was on his way back from North Charlotte when he ran over those children."

C. A. Parrott testified that "Albert Grant said he was coming to put the car up where he told him to leave it, behind the Sportland." On cross examination this witness was asked:

"Q. But he said he had already taken the passengers down to Spartanburg and came back, didn't he? A. No reply.

"Q. Did he say that? A. He said he had taken them to Spartanburg, yes.

"Q. Well, he had to get back from Spartanburg, didn't he before he could go up to North Charlotte? A. Yes, sir."

The jury answered the issues as to negligence and the second issues, "Yes", and assessed damages. From adverse judgments thereon, defendant Irving Kantor appeals to Supreme Court and assigns error.

G. T. Carswell and Joe W. Ervin, both of Charlotte, for plaintiffs appellees.

W. C. Davis, of Charlotte, for defendant appellant Kantor.

WINBORNE Justice.

The appellant stresses for error these assignments:

1. The refusal of the court below to grant (a) his motion for judgment as of nonsuit made in apt time as required by statute, C.S. § 567, and (b) his request for peremptory instruction for negative answer to the second issue.

2. If there be no error in the ruling in either of those respects, the refusal of the court to give this special instruction requested in apt time: "If you find from the evidence and its greater weight that the defendant, Albert Grant, was instructed by his co-defendant, Irving Kantor, to take two passengers from the City of Charlotte to the airport in Spartanburg, South Carolina, and return the car to the City of Charlotte and park same in the vacant lot at No. 115 1/2 South Church Street, and you should further find that the said Grant, after taking the persons to Spartanburg, returned to Charlotte, and instead of parking the car at the designated point, went on his own mission to North Charlotte for the purpose of visiting his family and ran over and killed plaintiff's intestate on his way back to the City of Charlotte, you will answer the second issue 'No,' and even though you should find from the evidence and the greater weight that he was on his way at the time of the injury and subsequent death of plaintiff's intestate to park the said car at the said designated point, it will be your duty and the Court so charges you to answer the second issue 'No."'

Upon the evidence disclosed in the record we are of opinion and hold that the court properly ruled with respect to both the motion for judgment as of nonsuit and the request for peremptory instruction, but that there is error in the refusal to give the quoted special instruction as requested.

The underlying question raised by these assignments is whether the servant, Grant, was acting within the scope of his employment by the defendant, Kantor, at the time of the injuries resulting in the death of intestates.

The owner of an automobile is not liable for personal injuries caused by it merely because of its ownership. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096. Martin v. Bus Line, 197 N.C. 720, 150 S.E. 501. The liability, if any, of the owner of an automobile operated by another rests solely upon the doctrine of respondeat superior. Leary v. Bank, 215 N.C. 501, 2 S.E.2d 570. This doctrine 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 wrong at the time and in respect to the very transaction out of which the injury arose". Linville v. Nissen, supra [162 N.C. 95, 77 S.E. 1099]; Martin v. Bus Line, supra; Liverman v. Cline, 212 N.C. 43, 192 S.E. 849.

The rule is well established that the master is responsible for the negligence of his servant which results in injury to a third person when the servant is acting in the scope of his employment or about the master's business.

The rule is also well settled that the master is not responsible for the tort of his servant when done without his authority and not for the purpose of executing his orders, or while doing his work, but wholly for the servant's own purposes and in pursuit of his private or personal ends. Dover v. Mfg. Co., 157 N.C. 324, 72 S.E. 1067, 46 L.R.A.,N.S., 199; Bucken v. R. Co., 157 N.C. 443, 73 S.E. 137.

A servant is acting in the course of his employment, when he is engaged in that which he was employed to do, and is at the time about his master's business. He is not acting in the course of his employment if he is engaged in some pursuit of his own. Not every deviation from the strict execution of his duty is such an interruption of the course of employment as to suspend the master's responsibility, but, if there is a total departure from the course of the master's business, the master is not answerable for the servant's conduct. Tiffany on Agency, p. 270. Robertson v. Power Co., 204 N.C. 359, 168 S.E. 415.

With respect to departure from employment, without consent of owner, "the general rule is that a servant in charge of his master's automobile, who, though originally bound upon a mission for his master, completely forsakes his employment and goes upon an errand exclusively his own, and while so engaged commits a tort, does not thereby render the master answerable for such tort under the rule of respondent superior." 5 Blashfield's Cyc. of Automobile Law and Practice, Permanent Edition, Section 3029.

The question of owner's liability for injury by automobile while being used by a servant for his own pleasure or purpose has been the subject of...