Thomas v. Poole, 7914SC451

• Decision Date: 19 February 1980
• Docket Number: No. 7914SC451,7914SC451
• Citation: Thomas v. Poole, 262 S.E.2d 854, 45 N.C.App. 260 (N.C. App. 1980)
• Parties: Robert L. THOMAS, Administrator of the Estate of Joyce Thomas, Deceased v. Ernest Edward POOLE, Jr., Dwight M. Dunlap, and Guy R. Rankin, Individually andGuy R. Rankin Security Service Corporation, Trading as Vanguard SecurityService.
• Court: North Carolina Court of Appeals

Page 854

262 S.E.2d 854

45 N.C.App. 260

Robert L. THOMAS, Administrator of the Estate of Joyce Thomas, Deceased v.Ernest Edward POOLE, Jr., Dwight M. Dunlap, and Guy R Rankin, IndividuallyandGuy R. Rankin Security Service Corporation, Trading as Vanguard SecurityService.

No. 7914SC451.

Court of Appeals of North Carolina.

Feb. 19, 1980.

Hedrick, Parham, Helms, Kellam & Feerick by Hatcher B. Kincheloe, Charlotte, and Kenneth B. Spaulding, Durham, for plaintiff-appellant.

Spears, Barnes, Baker & Hoof by Alexander H. Barnes, Durham, for defendants-appellees.

CLARK, Judge.

We elect to consider initially whether the trial court erred in ruling that plaintiff had no claim against the defendant corporation upon the doctrine of Respondeat superior.

Under the doctrine of Respondeat superior the master, or employer, is liable for the negligent acts or omissions of his servant, or employee, while acting as such and within the "scope of his employment."Jackson v. Mauney, 260 N.C. 388, 132 S.E.2d 899(1963);Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190(1951);Gillis v. A & P Tea Co., 223 N.C. 470, 27 S.E.2d 283(1943);57 C.J.S.Master and Servant§ 571(1948);8 Strong's N.C. Index 3d Master and Servant§§ 32 to 36(1977).Unless there is no material issue of fact as to whether the employee was acting within the scope of his employment, N.C.Gen.Stat. § 1A-1,Rule 56(c);W. Shuford, N.C. Civil Practice and Procedure§ 56-7(1975), the question will be submitted to the jury.See also, 8 Strong's N.C. Index 3d Master and Servant§ 34(1977), and the authorities cited therein.

The circumstances of the fatal shooting in the case Sub judice are particularly significant to the question of whether defendant Poole was acting within the scope of his employment and thereby made the defendant corporation liable by application of the doctrine of Respondeat superior.Since it appears that there were no eyewitnesses to the shooting other than defendant Poole, these circumstances appear in the deposition of Poole and in the testimony of Poole and Officer M. W. Mitchell, who investigated the homicide and arrived at the scene about 11:00 p. m. and talked with Poole, as transcribed at the criminal trial of defendant Poole on the manslaughter charge.

In his deposition Poole admitted that he told Officer Mitchell that he pulled the trigger, but at that time he was upset and did not understand what was happening."I did not pull the trigger," stated Poole."I closed the cylinder with my right hand as I was lifting the gun to put it in the holster."It was "at that point the gun went off.""At the time of this incident," explained Poole, "I thought the gun was fully unloaded."

In contrast, at the manslaughter trial Officer Mitchell testified that Poole made a statement about 12:50 a. m. and said: "I just pulled the trigger on the pistol and it went off. . . .I didn't know it was loaded . . .."

In the trial on the manslaughter charge defendant Poole testified that he did tell Officer Mitchell that he"just pulled the trigger and it went off."He added that he was nervous and the statement was made before he consulted legal counsel.

The foregoing transcribed testimony, offered by plaintiff in support of the motion for summary judgment established that defendant did not willfully and maliciously shoot the telephone operator, Joyce Thomas.But his version of the circumstances as related to Officer Mitchell and his version as related in his deposition and in his criminal trial are conflicting.

From Poole's statement to Office Mitchell it may be reasonably inferred that after Joyce Thomas grabbed his sleeve, Poole engaged in "horseplay" in that, thinking the revolver was empty, he pointed the gun at her and intentionally pulled the trigger.But from his deposition and trial testimony it may also be reasonably inferred that he negligently failed to empty the gun and that it accidentally discharged when he was attempting to put the gun in his holster.These two versions raise a material issue of fact, and, if the evidence at trial is substantially the same as appears in the record before us, the issue must be determined by a jury.

If the jury should find that defendant Poole engaged in "horseplay" in that, thinking the gun was empty, he pointed the gun at the telephone operator and intentionally pulled the trigger after she grabbed and held his sleeve, he deviated from the scope of his employment and engaged in a personal mission of his own, then, as a matter of law, the defendant corporation would not be liable to plaintiff under the doctrine of Respondeat superior.SeeNorman v. Porter, 197 N.C. 222, 148 S.E. 41(1929),...