Walker v. Manson

• Decision Date: 08 January 1943
• Docket Number: 744.
• Citation: 23 S.E.2d 839,222 N.C. 527
• Parties: WALKER v. MANSON et al. (two cases). MURRAY v. MANSON et al.
• Court: North Carolina Supreme Court

23 S.E.2d 839

222 N.C. 527

WALKER v. MANSON et al. (two cases).

MURRAY v. MANSON et al.

No. 744.

Supreme Court of North Carolina

January 8, 1943

Three civil actions by consent consolidated for the purpose of trial. The actions are to recover damages for injuries to the person and property of the plaintiffs alleged to have been negligently inflicted by the defendants in causing a collision between a Dodge Tudor automobile driven by the plaintiff John C. Walker and a Ford pickup truck driven by the defendant T.R. Manson, on a public highway in Alamance County, on 24 November, 1941.

Demurrer to the evidence as to the defendant Mrs. Attrice K. Manson was sustained, and the cases dismissed as to her, from which action of the Court no appeal was taken.

Demurrers to the evidence as to the defendants T.R. Manson and Mrs Alma Kernodle were overruled, and exception to such action was preserved by the defendant Mrs. Kernodle.

The jury answered the issues in favor of each of the plaintiffs and against the defendants T.R. Manson and Mrs. Alma Kernodle. From judgment predicated on the verdict, the defendant Mrs. Alma Kernodle appealed to the Supreme Court, assigning as error, inter alia, the refusal of the Court to sustain her demurrer to the evidence duly lodged and renewed under C.S. § 567.

Louis C. Allen and Long, Long & Barrett, all of Burlington, for Mrs. Alma Kernodle, appellant.

Barnie P. Jones and Thomas C. Carter, both of Burlington, for plaintiffs, appellees.

SCHENCK Justice.

The first issue submitted to the jury read: "1. Was the defendant, T.R. Manson, at the time of and in respect to the transaction out of which the plaintiffs' alleged injuries arose, acting within the scope of his employment as a servant of the defendant, Mrs. Alma Kernodle, as alleged in the complaint?"

The appealing defendant Mrs. Kernodle contends that there was insufficient evidence to justify the submission of this issue, and presents her contention under her exception to the refusal of the Court to sustain her demurrer to the evidence. The plaintiffs contend to the contrary. So the appeal poses but the single question: Was there more than a scintilla of evidence that the defendant T.R. Manson, the driver of the pickup truck, was the agent and employee of the appealing defendant Mrs. Kernodle and acting within the scope of his agency and employment at the time the collision involved occurred? We are of the opinion, and so hold, that the answer to the question posed is in the negative.

Taking the evidence most favorable to the plaintiffs bearing upon the question posed, it tends to show that the appealing defendant Mrs. Alma Kernodle owned a farm in Alamance County that she rented the farm in 1941 to one Fuller on shares that T.R. Manson, her son-in-law and codefendant, negotiated the rental contract with Fuller; that Manson "looked after the farm for her"; that Fuller moved on the farm on January 1, 1941, and that Manson brought a cow and calf there in March, 1941; that the cow and calf were owned by Mrs. Kernodle; that Manson took the cow and calf away in a Ford pickup truck about 3:30 o'clock P.M., on 24 November, 1941; and that the cow and calf were in the truck when it collided with the automobile driven by the plaintiff John C. Walker.

There is no evidence as to why the defendant T.R. Manson was taking the cow and calf away from the farm, or as to where he was taking them; nor is there any evidence that the appealing defendant Mrs. Alma Kernodle directed, requested or authorized Manson to haul the cow and calf away from the farm. The record is absolutely silent as to the destination or purpose of the removal of the cow and calf. While there is evidence that Mrs. Kernodle had expressed a desire to sell the cow, there is no evidence that she did sell her or authorized her removal. There is likewise no evidence that the appealing defendant...