Smith v. . Moore

16 S.E.2d 701, 220 N.C. 165, 1941 N.C. LEXIS 498

• Court: Supreme Court of North Carolina
• Decided: October 8, 1941
• Status: Published

Opinion

EaeNHIll, J.

The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person so sought to be charged at the time of and in respect to the very transaction out of which the injury arose. Liverman v. Cline, 212 N. C., 43, 192 S. E., 849; Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126; Cole v. Funeral Home, 207 N. C., 271, 177 S. E., 126. Proof of general employment alone is not sufficient to impose liability. Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820; Liverman v. Cline, supra. It must be made to appear that the particular act in which the employee was at the time engaged was within the scope of his employment and was being performed in the furtherance of his master’s business. Grier v. Grier, 192 N. C., 760, 135 S. E., 852; Liverman v. Cline, supra, and cases cited. Liability of the master is not to be determined by the extent of the authority of the agent, but by the purpose of the act in which the agent was engaged at the time. Grier v. Grier, supra; Riddle v. Whisnant, ante, 131.

Plaintiff and Miss Miller were invited to join Yelton’s party for their companionship and their own pleasure and so that plaintiff could drive Yelton’s car to Morganton and thus provide a means of transportation for the return to Eutherfordton. The record clearly discloses that the request that plaintiff drive Yelton’s car on the trip over and “try it out” was purely incidental to the primary purpose, which was social. Even if we concede that the trip in part was for demonstration purposes — and this is not supported by the evidence — the business ended and the party was on as soon as they gathered at the home of Mrs. Cox. All the evidence discloses that from thence on the parties were gathered together for personal pleasure and entertainment. After arriving at the home of Mrs. Cox they had cocktails and then rode around Morganton for some time. They then returned for more cocktails and ended the evening's pleasure with a steak dinner at about 10:30. After this, near midnight, they started on the return trip and the accident occurred. The only reasonable conclusion to be drawn from this evidence is that plaintiff, Yelton and their associates on this occasion were engaged in a purely social enterprise, wholly disconnected from and in nowise related to Yelton’s duties as an employee of defendant.

Defendant stresses the contention that Yelton was an independent contractor. He likewise argues that the record fails to disclose any sufficient evidence of negligence. As we are of the opinion that defendant's motion for judgment as of nonsuit should have been allowed the immateriality of these contentions at this time becomes apparent.

The judgment below is

Reversed.