Wilkie v. Stancil

• Decision Date: 27 March 1929
• Docket Number: 255.
• Parties: WILKIE v. STANCIL et al.
• Court: North Carolina Supreme Court

147 S.E. 296

196 N.C. 794

WILKIE v. STANCIL et al.

No. 255.

Supreme Court of North Carolina

March 27, 1929

Appeal from Superior Court, Wake County; Grady, Judge.

Suit by Mary W. Wilkie against H. B. Stancil and another. Judgment for plaintiff against defendant named only, and plaintiff appeals. No error.

Employer's liability for negligence of employee depends on whether employee at time of injury was acting within scope of employment.

On December 25, 1926, at 6 p. m., the defendant Stancil, while driving his automobile from his home on Salisbury street to the store of Gilmers, Incorporated, ran over the plaintiff at the intersection of Edenton and Halifax streets and injured her. She brought suit against both defendants, alleging that she had been injured by the negligence of Stancil, and that he was the employee and servant of Gilmers acting within the scope of his employment at the time of the injury. Upon issues joined by the pleadings, the jury found that the plaintiff had been injured by the negligence of Stancil, but not by the negligence of Gilmers, and that the plaintiff had not by her own negligence contributed to her injury, and awarded damages in answer to the fourth issue. Judgment was rendered against Stancil only, and the plaintiff excepted and appealed.

F. T Bennett and Bailey & Weatherspoon, all of Raleigh, for appellant.

Biggs & Broughton, of Raleigh, for appellee Gilmers, Inc.

ADAMS J.

His honor instructed the jury if they believed the evidence and found the facts to be as stated by Stancil, the only witness on the subject, to find in response to the second issue that the plaintiff had not been injured by the negligence of Gilmers. The question is whether there was error in this instruction.

In paragraph 10 of the complaint it was alleged: "That Gilmers, Incorporated, employed the defendant, H. B. Stancil as superintendent of its store building, and it was contemplated at the time of his said employment and under instructions given said Stancil by the manager of said store that the said Stancil should go to said store on holidays about night time for the purpose of turning on the lights for the benefit and protection of the defendant, Gilmers Incorporated; that December 25, 1926, the time complained of, was a holiday; that the place of business of Gilmers Incorporated, had not been opened that day and that H. B. Stancil was at the time complained of herein, on his way to the store for the purposes aforesaid."

This was admitted. It was also admitted that no delivery of goods for Gilmers was made by Stancil or any other person on December 25. It was a legal holiday and the store was closed. When Stancil went to the store early in the morning to turn off the lights, he made search for a toy which had not been delivered to the purchaser, and failing to get it, tried to find a man named Wingo, who operated the Merchants' Delivery Company, and who should have delivered it; but he did not get in communication with him. Stancil went home about noon, and remained there with his family until about 6 o'clock. He owned a car which he used regularly in going to and from his work. Under instructions he used it in times of emergency for the delivery of goods; but he had not been instructed to open the store at Christmas to deliver the toy. The direct inquiry is whether at the time of the alleged injury he was engaged in the prosecution of his employer's business so as to make the employer liable for his negligence.

The test is whether Stancil at the time of the injury was acting within the scope of his employment--whether he was engaged in the furtherance of his employer's business. Sawyer v. Norfolk & S. R., 142 N.C. 1, 54 S.E. 793, 115 Am. St. Rep. 716, 9 Ann. Cas. 440; Butler v. Mfg. Co., 182 N.C. 547, 109 S.E. 559; Gallop v. Clark, 188 N.C. 186, 124 S.E. 145. There is no evidence that Gilmers retained the right to say how he should travel in going to and from the store. He had bought the car for "his own use in going backward and forward." Gilmers had no interest in it and no control over it except "in times of emergency when used under Cooper's instructions."

It was held in Linville v. Nissen, 162 N.C. 95, 101, 77 S.E. 1096, 1099, that the doctrine of respondent superior applies only when the relation of employer and employee "is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong, at the time and in respect to the very transaction out of which the injury arose." This familiar principle, which has been recently applied in a number...