Thornton v. Thornton

45 N.C. App. 25 | N.C. Ct. App. | 1980

HEDRICK, Judge.

By his single assignment of error, plaintiff contends that the court erred in directing a verdict for defendant. He argues that the fellow servant rule does not apply in this case for that the defendant’s son, in “doing the bidding of his father without compensation”, thereby became the “alter ego” of his father. Under that theory, plaintiff asserts, the negligence of the son is imputed to the father, and the issue of whether the son was negligent is for the jury.

We disagree with the plaintiff’s view of this case. In our opinion, the fellow servant doctrine controls the resolution of the issues raised herein so as to bar, under these circumstances, any recovery by plaintiff from the defendant father.

Initially, we feel compelled to observe that the doctrine respecting injuries inflicted by a fellow servant or co-worker is still a viable rule of law in this State in those limited employer-employee relationships which are not regulated by Chapter 97 of our General Statutes, the Workers’ Compensation Act. G.S. § 97-2(1) specifically exempts from the statute’s coverage agricultural and domestic employees. Moreover, our rules of civil procedure provide that “injury by fellow servant” constitutes an affirmative defense. G.S. § 1A-1, Rule 8(c). Thus, while the rule has been limited in its scope, it has not been abrogated in its entirety. We believe that application of the rule in this case is appropriate for the reasons to follow.

The fellow servant doctrine derives from early English common law and operates to absolve an employer from any liability to one of his employees for injuries incurred “solely as the result of the negligence, carelessness, or misconduct of others who are in the service of the employer and who are engaged in the same common or general employment as the injured employee.” 53 Am. Jur. 2d Master and Servant § 295 at 327 (1970).

If an employer observes the requisite degree of care which the common law imposes upon him and complies with such statutory obligations as are imposed upon him, and an employee is injured because of the negligence of a fellow employee engaged in common employment with the employee injured, during the progress and while performing the part of work incident to the common employment, the employer is exempt from liability. . . .

Id. Accord, Pleasants v. Barnes, 221 N.C. 173, 19 S.E. 2d 627 (1942). In the case before us, it is not disputed that plaintiff and defendant stood in an employer-employee relationship at the time of the plaintiff’s accident. Neither is it argued that defendant’s liability arises because he has violated some statute, and we note that the child labor regulations in effect at the time of this suit did not apply “to the employment of a minor engaged in domestic or farm work performed under the direction or authority of the minor’s parent or guardian.” G.S. § 110-1. See, for current regulations, G.S. § 95-25.14 (1979 Cum. Supp.). Moreover, plaintiff would be hard-pressed to assert that the defendant’s liability arises from his employing or entrusting the job of driving the tractor to a worker whom he knew or should have known was incompetent for the task since plaintiff has testified that he had observed the minor son driving the same tractor on many occasions, and that he had never seen Keith operate the tractor in a negligent or careless way. Plaintiff was also compelled to concede that he knew of nothing which would indicate to him that Keith was not competent to drive the tractor. Although we express no opinion on the matter, we note further that plaintiff’s only theory of negligence rests on the fact that the tractor “launched forward.” He offered no evidence of any specific acts of negligence on the part of either Keith or the defendant.

The crucial question, then, is whether plaintiff and defendant’s son were “fellow servants” as to each other at the time of the injury, and the crux of that determination depends on whether they were engaged in the service of defendant to perform the same general or common work. We think it obvious from the facts that they were so engaged. The issue is not answered by reference to the fact that plaintiff is the brother and Keith the son of the defendant, nor is it resolved on the basis that plaintiff was paid an hourly wage while the son was not. The test, rather, is whether they shared fairly equally the responsibilities of accomplishing a particular task. Clearly, the test is met in this case where everyone involved in the operation of the harvester was working together to accomplish the common job of cropping the field of tobacco.

We cannot agree with plaintiff that the son was the “alter ego” of his father under the facts of this case. An “alter ego” or vice principal of the employer is an employee who exercises authority or control over the job being performed. “Unless the higher rank of the offending servant gave him the right of controlling the injured one, the defense of common employment will prevail.” 53 Am. Jur. 2d, supra § 333 at 351. Nothing appears in the record before us to suggest that this eleven-year-old boy was in charge of the cropping operation on the morning plaintiff was injured, or that he had the right to control plaintiff’s performance. To the contrary, the record supports an assumption that, if anyone was directing the job, plaintiff was.

The facts here are not in dispute. Whether the plaintiff and the son were fellow servants is, in our opinion, a question of law for the court. We hold that the judge correctly determined the question in this case. Thus, it was proper to enter a directed verdict for the defendant since the plaintiff’s own evidence establishes the defendant’s affirmative defense. See Price v. Conley, 21 N.C. App. 326, 204 S.E. 2d 178 (1974); Wyche v. Alexander, 15 N.C. App. 130, 189 S.E. 2d 608, cert. denied, 281 N.C. 764, 191 S.E. 2d 361 (1972). The judgment appealed from is

Affirmed.

Judges Martin (Robert M.) and WELLS concur.