Pinnix v. Griffin, 668.

• Docket Nº: No. 668.
• Citation: 219 N.C. 35, 12 S.E.2d 667
• Case Date: January 08, 1941
• Court: United States State Supreme Court of North Carolina

12 S.E.2d 667
219 N.C. 35

PINNIX .
v.
GRIFFIN et al.

No. 668.

Supreme Court of North Carolina.

Jan. 8, 1941.

[12 S.E.2d 667]

BARNHILL, J., STACY, C. J., and WINBOKNE, J., dissenting.

Appeal from Superior Court, Guilford County; J. A. Rousseau, Judge.

Action by Mrs. Hugh Pinnix, administratrix of the estate of William Rightsell, deceased, against C. D. Griffin and Gate City Life Insurance Company for the alleged wrongful injury and death of plaintiff's intestate when he was struck by an automobile owned and driven by first-named defendant, who was employed by last-named defendant. From a judgment of nonsuit, as against defendant insurance company, plaintiff appeals.

Reversed.

Action to recover for the alleged wrongful injury and death of plaintiff's intestate, through the negligence of defendants. Judgment as of nonsuit, as to Gate City LiTe Insurance Company, upon the evidence.

Under appropriate pleading, the evidence discloses that the defendant, Gate City Life Insurance Company, was engaged in the business of industrial insurance in the City of Greensboro, and the type of business done demanded frequent collections of insurance premiums in small amounts from workers in factories and industrial plants living in scattered areas throughout the city. Griffin was a whole-time employee of defendant, Gate City Life Insurance Company, upon salary, engaged in selling insurance and making these collections. While his particular assignment of territory was in West Greensboro, he was not confined to this area. The occurrence for which it is sought to hold the appellee liable, however, took place in this territory. The employee habitually used a Ford automobile, of which he was the owner, in prosecution of his employer's business, and had been doing so for some time, according to the testimony of Mrs. Fargas, E. C. Albert, and others. Malcombe Lee testified: "Mr. Griffin travelled by automobile in performing his duties."

In the afternoon of January 18, 1939, between 3 and 3:30 o'clock p. m., Griffin called at the home of a Mrs. Rogers on Jackson Street, and asked for Mr. and

[12 S.E.2d 668]

Mrs. Otis Heath, who were described as "workers" who had recently moved in with the Rogers. He had in his hand an insurance collection book. He was traveling in an automobile.

J. M. Holladay, Jr., testified that he "headed out'' West Market Street about 3:30 p. m., and when he reached Westover Terrace, (which is West of Jackson Street), he saw a commotion and found that an accident had occurred. An ambulance was coming up. This witness saw Griffin there and heard the statement he made to the officer. The statement was excluded in so far as it related to the defendant Insurance Company, appellee. Griffin, among other things, stated that he "was going out in Sunset Hills to make collections."

W. S. Gallamore, Jr., testified that he saw Griffin's car coming "very fast" up the road while Rightsell (the deceased) was in the middle of the street, watching the car,---picked up pace, --began to run or walk fast. When he had gotten 6 or 7 feet from the sidewalk he was struck by the car and thrown against the fender and radiator. The car continued until it hit the curb and got a hard jolt, throwing Right-sell 8 or 9 feet from the car. The car kept on, tore down some shrubbery and hit a concrete wall.

From this injury Rightsell died.

Other testimony as to negligence is that of Officer Leonard, who drove Griffin's car from the place of the collision and said the brakes were very bad.

This witness, also, would have testified, if permitted, that Griffin told him when he arrived at the scene of the accident that he was on his way to make collections.

Shuping & Hampton, of Greensboro, for appellant.

R. M. Robinson, of Greensboro, for appellee Gate City Life Ins. Co.

SEA WELL, Justice.

We think the evidence was sufficient to be submitted to the jury on the question of Griffin's negligence. That question does not seem to have been raised in the court below and needs no extended discussion here. But, regardless of Griffin's negligence, which one must assume the jury might have found, the appellee strenuously insists that there is nothing in the evidence that would impute such negligence to it, on the doctrine respondeat superior. It is argued that the evidence fails to show that Griffin, its employee, was about his employer's business at the time of the alleged negligent conduct, and that the employer, at any rate, should not be held liable for his acts in the use of his own automobile.

Griffin, a whole-time employee, on salary, appeared at the Rogers home on Jackson Street a few minutes before the accident, with an insurance collection book in his hand, calling for certain workers who had recently moved in. It was in the middle of the afternoon of what is ordinarily termed a working day. A reasonable inference from this is that he was, at the time, engaged in the duties of his employment. That Inference could not be defeated in the few minutes it took Griffin to reach West-over Terrace, still within his collection territory, and run into the deceased.

In Barrow v. Keel, 213 N.C. 373, 196 S.E. 366, 367, the point at issue was whether Quinn, an employee of Keel, was at the time of an alleged negligent injury "about his master's business". The fact that Quinn had on his person some checks "payable to persons living in the vicinity of Newport", who had sold tobacco in defendant's warehouse the week before, was considered, amongst other things, evidence on that point for the jury. Griffin was found with an insurance collection book in his hands, in the territory where it was his duty to be, on a contract which called for his whole-time.

Where the actual employment is admitted, courts should be slow to assume that there has been any deviation from the course of employment upon speculative hypotheses. In Cole v. Atlantic Coast Line R. Co., 211 N.C. 591, 597, 191 S.E. 353, 356, it is aptly said: "Moreover, it is well settled, as stated in 39 C.J. 1284, and quoted with approval in Colvin v. [Kitchen] Lumber Co, 198 N.C. 776, 153 S.E. 394, 395, that 'where it is doubtful whether a servant in injuring a third person was acting within the scope of his authority, it has been said that the doubt will be resolved against the master because he set the servant in motion, at least to the extent of requiring the question to be submitted to the jury'." Long v. Eagle 5, 10 and 25 Store Co, 214 N.C. 146, 151, 198 S.E. 573; Robinson v. McAlhaney, 214 N.C. 180, 183, 198 S.E. 647; Daniel v. East Tennessee Packing Co, 215 N.C. 762, 765, 3 S.E.2d 282. We regard the evidence as sufficient

[12 S.E.2d 669]

to carry the case to the jury on the point considered.

Hitherto, we have not discussed the excluded statement of Griffin at the scene of the wreck that he was going into Sunset Hills to make collections. It was clearly competent, for the purpose offered, under Smith v. Miller, 209 N.C. 170, 173, 183 S.E. 370, 372:

"The defendant objected to testimony offered by the plaintiff tending to show that immediately after the plaintiff was injured, Paul Miller said that at the time he struck and injured the plaintiff with defendant's automobile, he was going after defendant's morning newspaper.

"This objection was overruled, and properly so. The testimony was not offered as evidence tending to show that Paul Miller was an employee or agent of the defendant Jerry Swaim. The admission to that effect in the answer of the defendant had been offered in evidence by the plaintiff. There was ample evidence tending to show that Paul Miller habitually drove the automobile owned by the defendant Jerry Swaim as his employee....