There is some evidence of negligence and of causative relation between tbe operation of the automobile by Leonard and tbe injury sustained by Lindsey, but tbe quantum of evidence on these points is not tbe pressing question here.
Plaintiff seeks to recover of tbe defendant, Burnette Home Supply Company, on tbe doctrine of respondeat superior for injuries sustained by her intestate in tbe accident. Tbe Company denies all tbe essential allegations of tbe complaint. Plaintiff is, therefore, put to proof of every fact necessary to support her cause of action. This raises tbe question, is there evidence sufficient to warrant a submission of tbe case to tbe jury on tbe theory of liability under tbe doctrine of respondeat superior?
Tbe record discloses tbat there was a contract between Leonard and tbe Company under tbe terms of wbicb goods were consigned to Leonard by tbe Company to be sold on a commission basis. Leonard owned and used bis own automobile. Tbe Company furnished no transportation, paid for no expenses incident to tbe operation of bis car, and bad no control over bim or bis employees. There is no evidence tending to show tbat at the *103 time of the injury to plaintiff’s intestate Leonard was attempting to sell any goods for himself, the Company, or anybody else.
“The doctrine of
respondeat superior
applies only when the relation of master and servant, employer and employee, or principal and agent 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 is so well recognized that it may be said to be axiomatic. . . In
Linville v. Nissen,
Plaintiff based an exception upon the court’s refusal to receive from the answer of Burnette Home Supply Company the following language : “that during the times alleged in the complaint there was existing between E. G. Leonard and Burnette Home Supply Company a contract whereby the said E. G. Leonard was to sell goods and merchandise for Burnette Home Supply Company on a commission basis.” This language does not tend to prove the existence of a relationship of master and servant or employer and employee.
Hayes v. Elon College,
Plaintiff also excepted to the court’s failure to allow her to introduce from the answer of Leonard this language: “It is admitted that at this time the defendant was the representative of his co-defendant Burnette Home Supply Company.” This was no more- than an effort to prove agency by a declaration of an alleged agent and was upon that ground properly excluded.
Hubbard v. R. R.,
The plaintiff offered proof that the back seat of the Chevrolet automobile found at Leonard’s home about dusk dark on the day of the accident was filled with blankets and bedspreads and that Leonard there made the statement that he was selling the articles for the Company. This language was also properly excluded by the court. In
Tribble v. Swinson,
*104
The essential facts necessary for the establishment of liability upon the doctrine here invoked have been stated in a long line of decisions, some of which are:
Linville v. Nissen, supra; Grier v. Grier,
Measuring the plaintiff’s evidence by the standard laid down by this Court, plaintiff’s evidence was insufficient to take the case to the jury. The judgment of the court below is
Affirmed.