Martin v. Greensboro-Fayetteville Bus Line
150 S.E. 501
N.C.
1929
Check Treatment

*1 IN THE COURT. SUPREME [197 Bus Line. Martin so person mischief which I be sued for the so that cannot gence, one who is liable.” He is the intervening produces. directly R. v. Kellogg, in R. Mr. Justice Strong The same rule announced by in workable practice, аs sound in and principle 94 U. S., 469, regarded says: of our decisions. He in a number approval been with quoted has between was an unbroken connection is, there always “The question facts Did the injury operation? aсt continuous wrongful —a toas together linked events, a succession of so constitute continuous cause and independent there some new whole, make a natural was is admitted that ? It injury intervening wrong between in оrder held generally But it is is difficult application. rule to a wanton amounting or an act a finding negligence, to warrant appear injury, is of an it cause wrong, proximate negligence, of the consequenсe and probable natural injury in the light been foreseen it to have and that wrongful act, ought attending circumstances.” evidence shows plaintiff’s injury

"Where due to not to that of it defendant, a third negligence person, proper for he thus fails to out a case action, against to nonsuit the make the trial and the court, defendant. Such was the holding judgment Thomas, is affirmed. Ballinger

Affirmed. MARTIN, Administratrix, FANNIE v. GREENSBORO-FAYETTEVILLE LINE. BUS

(Filed November, 1929.) acting Master and Servant D lb —In this hеld: servant was not within case scope employment master’s master about business injui’ies person. liable for third negligence In order a master to bold for servant injury causing person, in be master’s a an to third it is tbat the еssential latter should of his in the of the furtherance damages an action an auto-bus line resulting plaintiff’s intestate, ‍​‌‌‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌​‌​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌‌​‌‌‌‍killing running from the of its driver over and plain- a motion as of nonsuit should if be entered tiff’s own the time evidence tends to show that at bus of the defendant was being garage of the driven returning which the defendant stored its buses who was to the to the bus garage contrary after the thereof had ridden home driver. express knowledge acquies- orders of the and without defendant cence. FALL TERM, N. 0.]

MaRtin Bus Line. Sinlc, Term, May Appeal Judge, Special from by plaintiff *2 of Durham. occa- death wrongful an alleged for damages Civil action to recovеr Street on Main intestate striking plaintiff’s bus sioned defendant’s from inflicting injuries him down and Durham, knocking in the city he died. which driver October,-1926, Griffin, discloses that on Lester

The evidence in Durham arrived Greensboro-Fayetteville buses, of оne of defendant’s road; traffic on the late, about an hour due to heavy at :45 p.m., garage, bus to King’s his he carried the unloading passengers, after one asked that its buses for the and night, where the defendant stores could leave so that he had been be tires, punctured, patched, of the which busy he was too Mr. time; King replied next on schedule that morning suggested on working Sunday to full force not repair the tire —his —and which the nеeded repairs, for garage that the bus be taken to Harris’ at Harris’ garage met him wife and child done; was Griffin’s arriving made; upon him after the had been repairs rode back with charge had who King, Griffin asked p.m., at the about storage garage, family him and if he could send the bus for the storing night, King well; feeling as he was about half sick and was home, taking bus, in the go that he might had no but replied car, he available bring driver, and a good of the Bulloсk, garage Clarence bus in the got Bullock this suggestion, that in back; consequence where when home, and his to Griffin’s family and rode with Griffin back way on his and that Griffin, the bus turned to Bullock by was over intestate. ran into and killed plaintiff’s Bullоck King’s garage, regular The evidence further discloses driver that'Griffin, not to use instructions from the defendant bus, was under positive night to store the same for the Durham, bus after but reaching and Mr. was to wire King King’s storage garage, later his garage the bus arrived at Greensboro whenever manager and that investigated; be delay might than 6:30 so that p.m., its until reached the storage garage use of from the time it the bus unauthorized, on the following morning scheduled departure or of the defendant acquiescence consent or without the knowledge, of its agents. nonsuit, action as case From a judgment dismissing error. plaintiff appeals, assigning & Jones

Bryant plaintiff. for John W. Hеster for defendant. one to hold sought the case: When it after stating C. Stacy, under the doctrine of another, tort of neglect (cid:127) IN THE SUPREME COURT. :’[T9.7

Mastín v. Bus. Line. least 'three ,respondeat 'superior, appear, yea 'be made things’ “some evi four, and, upon denial of must offer liability, plaintiff ‍​‌‌‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌​‌​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌‌​‌‌‌‍dence success” which tends to fact essential to his reasonably prove every are,: (S. v. 172 N. 89 S. These Bridgers, C., 879, E., 804).

1. That of the alleged plaintiff injured by Co., wrоngdoer. Hurt v. Power 730. 2. employee, That the relation of master and servant, employer be sought charged existed between the one to- principal agent, Nissen, alleged Linville v. tort-feasor. 3. That the neglect wrong servant, employee, agent, done the course of his employment or authority. Co., Ferguson Spinning E., 597; Fleming Mills, 161 N. Knitting

4. That the work of servant, employee agent, engaged the the his master, employer, was abоut the business of principal, Gurley superior, injury. Co., at the time of N. the v. Power 172 90 690, 943. E., ' It is that elementary law the master is for the responsible negligence of his which in injury servant results to a third when the servant person is his busi acting within the of and about the master’s scope employment R., 8 L. R. A. E., 509; ness. Roberts v. R. 143 N. 55 S. C., 176, the Ann. 375. It is (N. S.), 798, Cas., equally elementary if which caused master is not the of the servant the in some injury private occurred while the servant was engaged emplоyment. matter of his own or outside of his legitimate scope the Thomsen, R., v. 137; Bucken v. R. 157 N. Doran C., 443, E., 76 N. J. 754. L.,

It further is held that the owner of an automobile is not liable injuries Nissen, caused because of by it, merely Linville ownership. v. supra. And it is well by elsewhere, settled numerous here and decisions, that “the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the the wrongdoer pеrson to be for the result such sought charged of neglect wrong, the time and in to the respect transaction out of which the very injury Palmer, Thomsen, arose.” v. Wyllie 248; 137 N. Doran v. Y., supra; Stancil, Grier, Wilkie v. C., 794, E., 296; 147 S. Grier v. N. C., 760, 852.

In the instant case it could be said that was the hardly Bullock servant of the defendant the bus back to bringing garage, the storage or that Griffin was Avithinthe of his and about scope employment when he took the bus to drive himself and Co., ante, Cotton v. It Transportation home. 709. is univer- family TERM, FALL N. 0.]

Martin Bus Line. v. if done wrong by held that master is not responsible “the sally of not for execut purpose his authority servant is done without for a if servant, wholly his his orders or work. So ing doing he is ‍​‌‌‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌​‌​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌‌​‌‌‌‍ emplоyed, for which object of his own, disregarding purpose not another, does an to it, not his act to execute intending by Howe v. master not liable.” his is scope employment, within of Newmarch, 94 Mass., Co.,

Speaking subjeсt Dover Manufacturing Brown, J., 324, 72 S. delivering Court, of opinion is established, said: “This doctrine of as is respondeat*superior, now a but a The his just hard rule. master exercises care in the selection of servant and in his as are retains service such servants prudent and trustworthy; the servant in the master’s business prosecution of control; must of yet and out his necessity beyond sight his of pass law ap makes the master liable conduct the servant. Thе for the injustice this plication principle working without the greatest employer a limitation every possible only by servant is made act established servant which by courts, when the does liable. ‘Beyond within the master is not scope is as stranger servant much employment the master as be regarded third act in case cannot person, and his later as the act of it is now the master. The rule as established limits. defined judicial should bе held within its strictly declarations It is a rule much and the courts hardship capable great abuse Ross, should Holler v. guard its misapplication.’ extension 68 N. J. 324.” Law,

The decisions in Misenheimer Hayman, N. Dalton, 1, and Freeman both strоngly S. E., *4 upon by relied are position not in conflict with our plaintiff, present with of the cases above In stated cited. the it is first, expressly that to hold the master liable for tort of the servant, the the plaintiff of show “that thе driver of truck was the acting-within the in business,” in authority employer’s citing furtherance of Dalton, v. Freeman v. Clark support position: supra, the 176 In N. the Sweaney, second, question instructing was that trial court in presented deсided erred evi “if the jury, plaintiff by greater weight has satisfied you that he then the burden by automobile, dence injured evidence greater weight would be on the defendant show by not used being owner it was although automobile, hе was the case, in Freeman's business.” This was the extent of the decision in his de opinion, necessary expressions and while some e. Wilkie cases, g., line with the other holdings be out of cision, may IN THE SUPREME COURT. [197 Jeffrey Manufacturing Company. v. Stancil, 794, C., Tyson 296, Frutchey, Grier,

750, E., 718, S. Grier v. 192 N. C., 760, 852, 135 S. E., Cone, Reich v. Beck, E., 530, Bilyeu N. it should be as remembered, pointed out by Marshall, J., Burr, C. in U. S. v. 4 Cranch, 470, that “Every opinion, to be correctly understood, ought be considered ‍​‌‌‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌​‌​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌‌​‌‌‌‍with a view to the case it which was dеlivered.”

Applying these principles to the facts before us, would seem the plaintiff ought not to recover of the defendant.

Affirmed. Adams, I concurring: concur the opinion written by Chief Justice, and take ocсasion to stress the statement that in Misenheimer v. Hayman, 195 N. C., 613, the Court did not hold that owner of motor car is liable for injuries caused by it, because of his owner merely In that ship. case there was no as to the contrоversy negligent opera tion of the truck. The questions were whether (1) the defendant was truck; owner of the (2) whether at the time of truck driven the defendant’s employee; and if it (3) was, whether then engaged of the defendant’s prosecution busi ? ness The court on concluded, the defendant’s motion for nonsuit, that the evidence, while not in all complete was not so as to respects, meager require dismissal of the actiоn as a matter of law.

WILLIAM JEFFREY v. OSAGE MANUFACTURING COMPANY.

(Filed November, 1929.) plaintiff pilma Master and Servant B b —In this case held: established facie case that servant was in furtherance of master’s busi- ness. plaintiff’s Where the evidence in his action thе owner damages resulting auto-truck for from the of the defendant’s highway driver tends to show that a truck was found on the on a business day during operated by regular employee business hours and was regular defendant, duty the driving whosе business or was the operating Held, the said truck: the evidence is sufficient jury to furnish being a basis for a to infer that the truck at the time was operated in the furtherance of the master’s and makes out a prima case, upon contradictory question facie evidence, the is for jury. *5 Stack, before at January actioN, ‍​‌‌‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌​‌​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌‌​‌‌‌‍Civil Term, 1929, GastoN.