Cole v. Asheville Funeral Home

176 S.E. 553, 207 N.C. 271, 1934 N.C. LEXIS 441

• Court: Supreme Court of North Carolina
• Decided: October 31, 1934
• Status: Published

Opinion

BkogdeN, J.

There was competent evidence that Wilkins, an employee of defendant, was driving some kind of car during business hours. There was competent evidence that, while so driving, he negligently struck and injured the plaintiff.

Upon such showing, has the plaintiff made out a prima facie case? The law answers the question in the negative.

The applicable and governing principle of law was discussed and applied in the case of Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503. In that case it was declared: “Our decisions are also to the effect that a plaintiff, in order to recover for personal injury inflicted by an automobile or truck, must offer evidence tending to prove the following:

“1. That the truck or automobile inflicting the injury was at the time operated in a negligent manner, or that the driver thereof was guilty of negligence which was the proximate cause of the injury.

“2. Where the driver or operator of the conveyance at the time of the injury was other than the owner, the plaintiff must offer evidence tending to show the ownership of the vehicle, if such owner is sought to be charged with the negligence of the driver or operator.

“3. That if the injury was caused, by the negligence of an agent, evidence must be offered tending to establish the agency.

“4. That the agent or employee, at the time of the injury, was acting within the scope of his employment as contemplated and defined by law.”

It is further held in the J ejfrey case, supra, that if a vehicle, devoted exclusively to business purposes, is operated during business hours by the regular employee of the owner, and such employee is engaged in the duty of driving and operating such vehicle, such facts would warrant the inference by a jury that the vehicle was, under such circumstances, operated in the furtherance of the employer’s business.

In the case at bar there is no evidence that the automobile driven by Wilkins at the time was a business vehicle. There was no evidence that the defendant owned the automobile so driven. There was no competent evidence that the driver was engaged in the business of his employer. Consequently, the ruling of the trial judge was correct.

Affirmed.

Scheuck, J., took no part in the consideration or decision of this case.