72 S.E. 1067 | N.C. | 1911
Action for damages for the alleged negligent killing of William Dover, the son and intestate of plaintiff. At conclusion of the evidence a judgment of nonsuit was ordered upon motion of defendant, and plaintiff excepted and appealed. The plaintiff's intestate, a boy 10 years old, was killed by the running away of a team of mules belonging to the defendant, Mayes Manufacturing Company, and in charge of one of its servants. The evidence offered by the plaintiff shows that the team was being driven by a negro boy 17 years old and was at the time pulling a wagon partially loaded with lumber which was being moved for the defendant. After the lumber was loaded, the plaintiff's intestate and two other small boys climbed on the wagon. There was also on the wagon with the driver another nergo [negro] boy 18 or 19 years old. When the wagon was approaching a hill on a street in the village of Mayesworth, and just before starting up the hill, the negro driver made two of the white boys on the wagon get off, but let the Dover boy, plaintiff's intestate, remain on the wagon and permitted him to drive the mules, and while the boy was driving the negro boy stood up behind him and whipped the mules so that they trotted up the hill, and he continued to whip them until they passed over the top of the hill and out of sight of the witness. Another witness for the plaintiff testified that when he saw the mules they were running down the hill on the opposite side; that one of the negro boys had the reins and the Dover boy was sitting on the wagon in front of him, and that presently the negro boys jumped or fell from the wagon.
This witness then gives the following description of the manner in which the Dover boy was killed: "They ran on about 20 feet, and the lumber got to jogging and he got on his feet in some way and leaned over and the lumber carried him over, and as he went over the (326) hind wheel struck him across the head." There was evidence *261 that the mules had run away several times before this accident, the runaways being attributed by the witnesses to several causes. Once the lumber was "punching" the mules, and in another instance a table which was being placed on the wagon fell on the mules, and one witness said he had seen them run away and did not know the cause.
Augustus Lay, a witness for the plaintiff, testified that he was manager of the defendant's store and had charge of the teams and farms; that these mules "would run off if a man is not there sufficient to hold them, if lumber jumps up and strikes them, or if a table or box strikes them"; that the boys in the village were in the habit of riding on the wagons, and he would run them off three or four times a day.
At the conclusion of the plaintiff's evidence, the court overruled defendant's motion for judgment of nonsuit, and the defendant introduced a number of witnesses whose testimony was directly opposed to that of the plaintiff. At the conclusion of all the evidence, upon an intimation of the court that he would charge the jury that if they believed the evidence the plaintiff was not entitled to recover, the plaintiff submitted to a judgment of nonsuit. The correctness of this ruling is the sole question presented for our determination.
At the very threshold of this case we are confronted with a state of facts which compels us to sustain the judgment of his Honor, Judge Biggs. Construed in the light most favorable to the plaintiff, the evidence establishes the fact that intestate was invited by the defendant's servant to ride on the wagon. It is not alleged, nor does it appear in evidence, that the servant had express authority to invite or permit boys to ride on defendant's wagons. It was shown that the servant's duties were those of an ordinary driver of a team of mules, and that at the time of the accident he was engaged in the performance of such duties. We must hold upon this state of facts that he had no implied authority to permit boys to ride on his wagon, and that in doing so he acted beyond the scope of his employment. As authority for this conclusion we have only to repeat well-settled principles in the law of master and servant.
"In an action for tort, in the nature of an action on the case, (327) the master is not responsible if the wrong done by the servant is done without his authority and not for the purpose of executing his orders or doing his work. So that, if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another, not within the scope of his employment, the master is not liable." Howe v. Newmarch,
The recent case of Marlowe v. Bland,
In his learned opinion in Stewart v. Lumber Co., 146 N.C. at page 112,Mr. Justice Walker quotes this language from his opinion in the Danielcase, and well says: "What better authority can we invoke in support of our position than the opinions of the Court of King's Bench, as delivered byLord Holt and Lord Kenyon?"
"The test of liability in all cases," says Mr. Justice Hoke in Sawyer v.R. R.,
This doctrine of respondent superior, as it is now established, is a just but a hard rule. The master exercises care in the selection of his *263
servant and retains in his service only such servants as are prudent and trustworthy; the servant in the prosecution of the master's business must of necessity pass beyond his sight and out of his control; and yet the law makes the master liable for the conduct of the servant. The application of this principle without working the greatest injustice to every employer of a servant is made possible only by the limitation established by the courts, that when the servant does an act which is not within the scope of his employment the master is not liable. "Beyond the scope of his employment the servant is as much a stranger to the master as any third person, and his act in that case cannot be regarded as the act of the master. The rule as it is now established by the later judicial declarations should be strictly held within its defined limits. It is a rule capable of great abuse and much hardship and the courts should guard against its extension or misapplication." Holler v. Ross,
The authorities on this question from other courts are collected and fully discussed in the opinion of Mr. Justice Connor (329) in Stewart v. Lumber Co.,
We have a number of cases from other courts which directly sustain the position that the defendant's driver was not acting for his master when he permitted plaintiff's intestate to ride on the wagon. In the leading case of Bowler v. O'Connell,
"The owner of the wagon in charge of a skillful driver is not liable for the death of a child fatally injured in attempting to alight from the wagon after having climbed thereon at the invitation of the driver who was neither expressly nor by implication authorized to invite children to get upon the wagon, and whose act is doing so was in no sense within the scope of his employment or in furtherance of the master's business." Stone Co. v.Pugh,
In Kiernan v. Ice Co.,
The Supreme Court of Michigan, in Schulwitz v. Lumber Co.,
(331) We cannot hold that a team of mules and wagon is a "dangerous instrumentality," and that the defendant should be made liable for the death of plaintiff's intestate without regard to whether the servant *265
was acting beyond the scope of his employment. Pollock on Torts, 480. But if we should so hold, it would not change our decision, because the character of the mules was not the cause of the death of plaintiff's intestate. The accident was the result of the conduct of the defendant's servant, for which the defendant is not liable. Dougherty v. R. R.,
Affirmed.
Cited: Bucken v. R. R., post, 447; Greer v. Lumber Co.,