Grier v. . Grier
135 S.E. 852
N.C.
1926
Check Treatment
BboguxeN, J.

The question is this: Is an employer of an automobile salesman who furnishes the salesman a car for demonstration purposes and permits the salesman to keep the car at night, liable for the negligent acts of said salesman in operating said car?

*763 Tbe answer to this question depends upon wbetber or not tbe salesman, at tbe time o£ committing tbe negligent act, was acting witbin tbe “scope of bis employment.” One of tbe leading cases in tbis State on tbe question of “scope of employment” is Sawyer v. R. R., 142 N. C., p. 1. Justice Hoke, quoting from Wood on Master and Servant, says: “Tbe test of liability in all eases depends upon tbe question wbetber tbe injury was committed by tbe authority of tbe master, expressly conferred or fairly implied from tbe nature of tbe employment and tbe duties incident to it. Tbe simple test is wbetber tbey were acts witbin tbe scope of bis employment; not wbetber tbey were done while prosecuting tbe master’s business, but wbetber tbey were done by tbe servant in furtherance thereof and were such as may fairly be said to have been authorized by him. By ‘authorized’ is not meant authority expressly conferred, but wbetber tbe act was such as was incident to tbe performance of tbe duties entrusted to him by tbe master, even though in opposition to bis express and positive orders.”

Again, in Marlowe v. Bland, 154 N. C., 140, it is said: “An act is witbin tbe scope of tbe servant’s employment where necessary to accomplish tbe purpose of bis employment, and intended for that purpose, although in excess of tbe powers actually conferred on tbe servant by tbe master. Tbe purpose of tbe act rather than its method of performance is tbe test of tbe scope of employment. But tbe act cannot be said to be witbin tbe scope of tbe employment merely because done with intent to benefit or serve tbe master, not merely because tbe injuries complained of would not have been committed without tbe facilities afforded by tbe servant’s relations to bis master, nor because tbe servant supposed that be possessed authority to do tbe act in question.”

Again, in Dover v. Mfg. Co., 157 N. C., 324, it is said: “In an action for tort, in tbe nature of an action on tbe case, tbe master is not responsible if tbe wrong done by tbe servant is done withQut bis authority and not for tbe purpose of executing bis orders or doing bis work. So that, if tbe servant wholly for a purpose of bis own, disregarding tbe object for which be is employed, and not intending by bis act 'to execute it, does an injury to another, not witbin tbe scope of bis employment,. tbe master is not liable.” And again, in tbe same case, Justice Brown declares: “Beyond tbe scope of bis employment tbe servant is as much a stranger to tbe master as any third person, and bis act in that case cannot be regarded as tbe act of tbe master.”

In Bilyeu v. Beck, 178 N. C., 481, a judgment of nonsuit was upheld, Justice Allen observing: “There is no evidence that tbe daughter was on any mission or performing any service for tbe defendant, her mother.”

*764 Under tbe decisions, therefore, an act, to fall within the “scope of employment” :

1. Must be done in furtherance of the master’s business or incident to the performance of the duties entrusted to the servant by the master.

2. Must be done in the prosecution of the master’s business or in executing his orders or doing his work.

3. Must be connected with some mission or the performance of some service for the principal.

4. Where the act is necessary to accomplish the purpose of the employment and intended for that purpose.

The general principles of law governing such cases are well established. The chief difficulty encountered is in applying these general principles to the facts of particular cases.

In the case at bar the defendant, Todd Grier, as salesman, had wide discretion as to the use of the car with which the plaintiff’s intestate was killed. But liability in such cases is not ordinarily imposed upon the employer, by reason of the extent of the authority of the agent, but rather upon the purpose of the act and whether it was done in the furtherance of the employer’s business or was reasonably incident to the discharge of the duties entrusted to the employee.

Tested by the established principles of liability, is the defendant, Etheredge, liable for the negligent acts of the defendant, Grier, under the facts disclosed in this record?

The defendant, Grier, went to Taylorsville to carry a friend on Sunday morning. He began to drink heavily and became intoxicated. He purchased whiskey which he was taking back to Charlotte with him. Upon arriving in Charlotte, he did not return or attempt to return to the place of business of his employer, but was on his way home when in a drunken condition he negligently ran over and killed plaintiff’s intestate. He did not solicit or attempt to solicit orders during the trip. He had no such purpose in mind. A trip on Sunday from Charlotte to Taylorsville to take a friend to his home was in nowise incident to the performance of his duties as a salesman, and the record does not disclose any act whatever in furtherance of the employer’s business or intended for any such purpose, but, upon the other hand, the whole undertaking was one designed for the personal purposes of the agent.

The case of Reich v. Cone, 180 N. C., 267, is directly in point. In that case Clark, C. J., says: “When a motor car is used by one to whom it is loaned for his own purpose, no liability attaches to the lender unless, possibly, when the lender knew that the borrower was incompetent, and that injury might occur.” In our case, there was no evidence that the defendant, Etheredge, knew that Todd Grier was an incompetent driver or that he drank liquor.

*765 The same principle is stated in Huddy on Automobiles, 7 ed., sec. 763: “One Laving possession of an automobile as an agent of the owner for the purpose of selling the same, has implied authority, unless forbidden, to run the machine to demonstrate it to a proposed purchaser. If guilty of negligence in so running it, the owner may be liable for injuries proximately resulting from such negligence. The agent, however, cannot use the car for his own private purposes, and his negligence when so using the machine cannot be chargeable to the owner.”

In Wright v. Motor Car Co. (Utah), 177 Pac., 237, the general manager of the defendant took a demonstration car owned by the defendant and went with a friend to see a young lady to take her to a dance. The Court held that there was no liability imposed upon the owner of the car for the negligence of the operators for the reason that the car was being used for purely social purposes.” To the same effect is Slater v. Advance Thrasher Co. (Minn.), 107 N. W., 133.

The plaintiff relies upon Freeman v. Dalton, 183 N. C., 538. In that case the agent was actually engaged in operating the car as an emergency car for carrying passengers. The original record discloses that there was testimony to the effect that the defendant, Dalton, employed the agent to drive the jitney and paid him for 'his services. So that there was evidence that the defendant was the owner of the car and that it was being operated for business purposes.

Upon a careful perusal of the record and an examination of the authorities, we are of the opinion, and so hold, that the motion of nonsuit made by the defendant, Etheredge, at the conclusion of all the evidence, should have been allowed.

Eeversed.