Ross v. Western Union Telegraph Co.

• Decision Date: 19 March 1941
• Docket Number: 163.
• Citation: 13 S.E.2d 571,219 N.C. 324
• Parties: ROSS v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

13 S.E.2d 571

219 N.C. 324

ROSS v. WESTERN UNION TELEGRAPH CO.

No. 163.

Supreme Court of North Carolina

March 19, 1941

This is an action for actionable negligence, brought by plaintiff against defendant alleging damage. At the close of plaintiff's evidence, the defendant in the court below made a motion for judgment as in case of nonsuit. C.S. § 567. The court below sustained the motion. The plaintiff excepted assigned error and appealed to the Supreme Court.

M F. Toms and A. J. Redden, both of Hendersonville, for plaintiff.

Adams & Adams, of Asheville, for defendant.

CLARKSON Justice.

We think the judgment of nonsuit rendered in the court below correct. The evidence of plaintiff was to the effect that on September 5, 1938, about nine, or before, in the morning he was injured by one Grady Deaton, who was driving a Ford car, and who negligently and carelessly ran into him, striking his leg and foot and causing serious injury.

The action is not brought against Grady Deaton, but against the Western Union Telegraph Company. The record shows that Grady Deaton was working for the defendant as a messenger boy, with cap and clothes indicia of his employment. His automobile was frequently used, with defendant's knowledge and consent, for delivering out-of-town telegrams.

The sole question for determination is: Was Grady Deaton about his master's business or in the course of his employment when he injured plaintiff? We think not. He was about his own private business. The plaintiff and defendant subpoenaed Grady Deaton and plaintiff made him a witness. Deaton testified, in part: "On September 5th, 1938, I owned a Thirty-three Model Ford V8. That was the same car I drove into the Thomas Buick Motor Company. That was the same car Mr. Ross was injured by. I have delivered messages in that car. I don't know how many times. I would say around 10 or 15 or 20 times. The manager had me go on long trips and deliver messages once or twice. I delivered those messages as he requested me to. I have not worked for the Western Union for a week and a half. I was working there on the 5th day of September 1938, and prior thereto. I was subpoenaed here by the Western Union. (Cross-examination). I live here in Hendersonville. I have lived here about eight years, I did work for the Western Union about 1937 as a messenger boy and I was working as a bicycle messenger boy on the 5th day of September, 1938, and was working for them on the day Mr. Ross was hurt. At that time I was living on the Tracey Grove Road. It is east on the Chimney Rock road. I was living about three miles from town. I owned a car at that time. It was a Model 33 black Ford V8 Sedan, a five passenger car. It had a black metal top, and the Western Union had no interest in the car. I bought it in Asheville at the Parkland Chevrolet Company. The Western Union Company did not pay any part of the repair bills. My regular job was delivering telegrams in town by bicycle. I would come in the morning in my automobile and would leave it before I went to work. And then would go riding my bicycle. This bicycle was used in the free delivery zone. That was for telegrams in town, in Hendersonville, and then for delivering telegrams out in the country from time to time I used my automobile, with permission from the manager for the trip. Sometimes the one to whom it was sent would pay the charges; sometimes it would be guaranteed by the sender. It was either by the sender or the receiver. I was under no obligation to take these telegrams out in the country. The Western Union did not pay any part of the cost. The trip was paid for by the sender or the receiver. The larger part of my work was done on bicycle, and when the Manager turned over telegrams not to be delivered in the city I delivered them in the country. On the 4th day of September, 1938, I went in my car to Tracey's here in Hendersonville. It is on the corner of 7th and Main. It is a restaurant right across Main Street from the Thomas Motor Company. I parked my automobile there in front of Tracey's and a fellow backed his car off...