Reich v. Cone
| Decision Date | 04 November 1920 |
| Docket Number | 361. |
| Parties | REICH v. CONE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Ray, Judge.
Action by J. H. Reich against Bernard M. Cone. From a judgment for plaintiff, defendant appeals. Error.
This is an action for damages sustained by plaintiff's automobile, caused by defendant's automobile while being driven by one Clay Horn. The defendant admitted the ownership of the automobile, and there was evidence for the plaintiff that her automobile was injured by the negligence of the driver of the defendant's car, causing the collision. The evidence for the defendant is that at the time of the collision his car was being driven by his butler, to whom he had loaned it while off duty; the said butler was not his chauffeur, but he had another man for that duty; that Clay Horn was using the car for no purpose of the defendant, and was not in his employment at the time, but was using it solely in his own business and for his own pleasure; that Horn had worked for him for about three years, and he had loaned him the car for five or six times; that he did not permit Horn to use the car whenever he wanted it, but had loaned it to him only on a few occasions, and had refused to lend it to him several other times. There was evidence that Clay Horn had taken lessons in driving automobiles and was not an incompetent driver.
48Ak193(10) Acts of Servant in Behalf of Himself or of Third Person.
Where a servant borrows his master's automobile, and while using it for his own personal affairs or pleasure negligently injures another, the master is not liable.
J. S Duncan, of Greensboro, for appellant.
John C Wallace, of Winston-Salem, and R. M. Robinson, of Greensboro for appellee.
This was error. In Linville v. Nissen, 162 N.C. 99, 77 S.E. 1098, the court said:
"The owner of an automobile is not liable for personal injuries caused by it merely because of its ownership."
And again:
"Even if the son had been the servant of his father in driving the machine, the father would not be liable for his negligence, unless the son was at the time acting in the scope of his employment and in regard to his master's business."
This was quoted and approved in Bilyeu v. Beck, 178 N.C 482, 100 S.E. 891; Allen, J., saying...
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