Jackson v. Mauney
132 S.E.2d 899
N.C.
1963
Check Treatment
RodmaN, J.

Cаrolina assigns as error tee court’® refusal to. allow its motion for nonsuit.

Plaintiff alleges he was injured when Mauney, traveling at a high speed, negligently left the channel ‍‌​​‌​‌‌​‌​‌‌‌‌​‌‌​‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​​​​‌​​​‌‌‌‍and entered a .shallow cove. The •boat grounded, pitching plaintiff into the windshield.

Plaintiff neither alleges nor offered evidence tending tо- show tee grounding was due to a defect -in tee boat or to Mauney’® incompetence. The negligence alleged iis Mauney’s failure to utilize tee knowledge and skill he possessed. Carolinа was not liable for plaintiff’s injuries merely because it owned the vessel in which plaintiff was riding or becаuse it permitted Mauney to. use tee boat. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Reich v. Cone, 180 N.C. 267, 104 S.E. 530; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Weatherman v. Ramsey, 207 N.C. 270, 176 S.E. 568; Parrott v. Kantor, 216 N.C. 584, 6 S.E. 2d 40; Hawes v. Haynes, 219 N.C. 535, 14 S.E. 2d 503; McIlroy v. Motor Lines, 229 N.C. 509, 50 S.E. 2d 530; Grindstaff v. Watts, 254 N.C. 568, 119 S.E. 2d 784; Cohee v. Sligh, 259 N.C. 248.

The isole ground on which liability cam be imposed on Carolina is tee assertion ‍‌​​‌​‌‌​‌​‌‌‌‌​‌‌​‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​​​​‌​​​‌‌‌‍teat it is responsible for the acts of Mauney, its secretary.

A master оr principal is liable for those act® of ¡hi® ¡servant or agent done in the performance of the work for which tee ¡servant or agent was employed. The relationship must “Exist between the wrongdоer and the person ¡sought to be charged for the result of the wrong at tee time ¡and in respeсt te' tee very transaction out of which tee injury ¡arose.” Creech v. Linen Service Corp., 219 N.C. 457, 14 S.E. 2d 408. Devin, C.J., quotas with approval in Travis v. Duckworth, 237 N.C. 471, 75 S.E. 2d 309, this ¡statement taken from Tiffany on Agency: “A sеrvant is acting in the course ‍‌​​‌​‌‌​‌​‌‌‌‌​‌‌​‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​​​​‌​​​‌‌‌‍¡of his employment when he is- engaged in that which he is employed to< do, and is at tee time about his *391 mastеr's business. He is not acting in the course oí his 'employment, if he is engaged 'in some pursuit of his own.” If the servant or -agent is acting outside the scope of -his employment, the employer is not responsible. Lewis v. Tobacco Co., ante, 410; Lindsey v. Leonard, 235 N.C. 100, 68 S.E. 2d 852; Hinson v. Chemical Corp., 230 N.C. 476, 53 S.E. 2d 448; Salmon v. Pearce, 223 N.C. 587, 27 S.E. 2d 647; Walker v. Manson, 222 N.C. 527, 23 S.E. 2d 839; Smith v. Moore, 220 N.C. 165, 16 S.E. 2d 701; McLamb v. Beasley, 218 N.C. 308, 11 S.E. 2d 283; Puckett v. Dyer, 203 N.C. 684, 167 S.E. 43; U. S. v. Eleazer, 177 F. 2d 914; Manuel v. Cassada, 59 S.E. 2d 47, 18 A.L.R. 2d 395; Rogers v. Allis-Chalmers Mfg. Co., 92 N.E. 2d 677, 18 A.L.R. 2d 1363; Olender v. Gottlieb et al., 101 N.E. 2d 622; Voytas v. U. S., 256 F. 2d 786; Mаster and Servant, 57 C.J.S. s. 570 ‍‌​​‌​‌‌​‌​‌‌‌‌​‌‌​‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​​​​‌​​​‌‌‌‍and 35 Am. Jur. s. 553 and 554.

The evidence viewed in the light most favorable -to plaintiff is sufficient to estаblish these facts: Plaintiff, vice -president of Carolina, is also am employee of J. P. Stevens Co., in charge of its upholstering busineiss; he lives in New York; he gives 95% of his time to Stevens and 5% to -Carolina; Carolina mаnufactures and sells yam; Stevens manufactures iamd sells cloth; Mauney was secretary and treasurer -of Carolina; Carolina owned a motor boat which it “used for the entertaining of customers, building of gоod will among the community, entertaining our -employees and better relations with the employeеs of the plant, -and employees and -officers of the corporation;” the mill was on vaсation during the week -of 4 July 1960, “everybody, -except the watchman, was -on vacation;” plaintiff, Mauney, and a Mr. Crawford decided to take -a vacation -that week; -they went to Orescent Beach -and were accompanied by their families. Plaintiff testified: “We rented a house there and -all of us paid for it. The purpose of this trip so far as-1 was concerned was for relaxation, and recreation ... On July 9, when the accident -occurred, we were going up to Carolina Beach and up towards Wilmington, and up the Inland Waterway. We were not going to- do anything up there, it was just a pleаsure (trip up the Inland Waterway ... As far as I was concerned, -all three -of us were taking the boat dоwn there, Mr. Crawford, Mr. Mauney iand myself, so- we -could all use it -down there for -our own personal pleasure. And on the day when this accident happened, we were -all pleasure bent for o-ur own рersonal pleasure . . . Whether there was a -boat and vacation involved or not, I would go аhead and do my job to the best of my ability -regardless of whether I had a vacation with Billy and regardless -of whether I used the company .boat, I would give them the benefit of my advice- -and -help for whatever value it may be under any circumstances. So, it is true that actually using the boat and going on the vacаtion for recreation *392 and relaxati-oa had nothing ¡to do with my attitude toward the corporаtion.” Plaintiff, when asked if during tire week he was on vacation he had any business discussions with Maurney, replied: “I answer I don't remember any specific -conversations but usually when we got together— ... I am sure we -did.” Defendant Mauney .testified that Carolina needed a yarn, ‍‌​​‌​‌‌​‌​‌‌‌‌​‌‌​‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​​​​‌​​​‌‌‌‍salesman, .and ¡whi-le they were on vacation he and plaintiff discussed the employment -of a salesman recommended by plaintiff. There is nothing in the record to .indicate when these conversations with respect to employment of a sаlesman or any -other business matter took place. It appears unequivocally that the b-oat ride was for pleasure — not for business.

To hold that an employer is -liable for acts done by his employees while on vacation meanly because the employer provides them, with a means -of enjoyment, .and casual -discussions occur -among the vacationers with -respect tо- the employer’s problems -during the vacation period would -stretch th-e doctrine of respondeat superior b-ey-ond its point o.f -elasticity.

We havе announced we will not expand the “family purpose doctrine” to- include a -motor boat рrovided by a parent for -the enjoyment iand relaxation of members of his- family. Grindstaff v. Watts, supra. We perceive no- sound reason for imposing 'liability on -a corporation in -similar -circumstances.

The motion for nonsuit should have been allowed.

Reversed.