Russell v. Cutshall

• Decision Date: 22 September 1943
• Docket Number: 98.
• Citation: 26 S.E.2d 866,223 N.C. 353
• Parties: RUSSELL v. CUTSHALL et al.
• Court: North Carolina Supreme Court

26 S.E.2d 866

223 N.C. 353

RUSSELL v. CUTSHALL et al.

No. 98.

Supreme Court of North Carolina

September 22, 1943

Civil action to recover damages for personal injury resulting from the negligent operation of a truck by the individual defendant.

The corporate defendant is engaged in bottling and selling carbonated drinks in Buncombe and adjoining counties. It delivered crates of its drinks by truck. The individual defendant Cutshall was one of its truck drivers. On August 1 1941, he was making a trip on Highway 209 serving different customers. He intended during his trip to go on to Bluff N.C., to deliver merchandise to a Mrs. Connor, aunt of the infant plaintiff. When Cutshall reached Hot Springs he stopped for some time. When he left he took on Ed McGaha and Ralph Finley as passengers, who occupied the cab. As he was leaving McGaha saw plaintiff and asked Cutshall to stop so that he could speak to him. McGaha asked plaintiff to go home with him. Plaintiff declined, but stated that he would like to go to Bluff to see his aunt. Cutshall volunteered to take him. During the conversation Cutshall told plaintiff he was going to Mrs. Connor's store, that plaintiff could go along and come right back with him. "He wanted me to show him the way up there." Plaintiff got on the running board of the truck with one of the passengers holding to him. When the truck had proceeded some distance it ran off the road under conditions that would indicate negligence on the part of the driver. Plaintiff was thrown off and suffered personal injuries.

At the conclusion of the evidence for plaintiff, the Court, on motion of defendants, entered judgment of nonsuit as to the corporate defendant. Plaintiff excepted, submitted to a voluntary nonsuit as to the individual defendant, and appealed.

Don C Young, of Asheville, and Guy V. Roberts, of Marshall, for plaintiff, appellant.

Smathers & Meekins, of Asheville, for defendant, appellee.

BARNHILL Justice.

There is no contention that the defendant's driver had express authority to take on passengers. Hence the one question here presented is this: Was Cutshall, under the circumstances existing at the time, acting within the apparent scope of his authority when he invited or permitted plaintiff to ride on the running board of the defendant's truck?

Ordinarily, one who is engaged to operate a motor vehicle has no implied authority, by virtue of his employment, to invite or permit third persons to ride; and the employer is not liable for personal injuries sustained by the invitee while riding in such machine except, perhaps, when willfully or maliciously inflicted. Dover v. Mayes Mfg. Co., 157 N.C. 324, 72 S.E. 1067, 46 L.R.A.,N.S., 199; Cotton v. California Truck Transp. Co., 197 N.C. 709, 150 S.E. 505; Cole v. Johnson Motor Co., 217 N.C. 756, 9 S.E.2d 425; 35 Amer.Jur. 1016, 5 Blashfield Cyclopedia of Automobile Law and Practice, § 3016, p. 146 (see n. 72 for authorities), 148; Looney v. Bingham Dairy, 75 Utah 53, 282 P. 1030, 73 A.L.R. 427; Union Gas & Electric Co. v. Crouch, 123 Ohio St. 81, 174 N.E. 6, 74 A.L.R. 160; Wigginton Studio v. Reuter's Adm'r, 254 Ky. 128, 71 S.W.2d 14; Yanowitz v. Pinkham, 111 N.J.Law 448, 168 A. 770; Bilow v. Kaplan, 164 A. 694, 11 N.J.Misc. 108; Morris v. Dame's Ex'r, 161 Va. 545, 171 S.E. 662; Hartman v. Badger Tobacco Co., 210 Wis. 519, 246 N.W. 577; Annotation 74 A.L.R. 163; Rolfe v. Hewitt, 227 N.Y. 486, 125 N.E. 804, 14 A.L.R. 125; Morris v. Fruit Co., 32 Ga.App. 488, 124 S.E. 807. See, also, 5 Blashfield Cyclopedia of Automobile Law and Practice, § 3018, p. 152.

In the Cotton case, supra, the plaintiff, as here, was invited to ride on the running board of the vehicle. Judgment for plaintiff was vacated, and the motion to dismiss as in case of nonsuit was sustained.

The particular nature of the employment, or the circumstances existing at the time, or acquiescence on the part of the employer, may create an exception to this general rule. Fry v. Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354; Hayes v. Pine State Creamery, 195 N.C. 113, 141 S.E. 340; Cole v. Johnson Motor Co., supra.

In an effort to bring his case within the exceptions to the general rule, plaintiff alleges in his complaint, as the basis of his claim, that Cutshall was acting within the scope of his implied authority; "that the defendant customarily carried passengers in the conduct of their business in this area of Spring Creek for the purpose of creating good will for the corporate defendant, advertising its products, and in otherwise promoting the interest of the defendant Company."

There is a total absence of any evidence in the record tending to sustain this allegation. On the contrary, plaintiff himself testified that he had not theretofore seen any driver of the defendant carrying a passenger. Hence knowledge and consent on the part of the employer cannot be implied so as to support an inference that the driver was acting within his ostensible authority.

But in the course of the cross examination of plaintiff he testified: "I did not ask him to let me ride, I didn't ask him that. The driver did want me to go to Mrs Connor's store and show him the way up there. *** said I could ride to the store and I could go and he would bring me right back with him. *** The only reason on earth for...