Swicegood v. . Swift Co.

193 S.E. 277, 212 N.C. 396, 1937 N.C. LEXIS 335

• Court: Supreme Court of North Carolina
• Decided: November 3, 1937
• Status: Published

Opinion

Per Curiam.

After careful examination of all the evidence appearing in the record in this appeal, we concur with the opinion of the trial court that there was no evidence at the trial of this action tending to show that at the time of the collision which resulted in injuries to the plaintiff, James E. Holton, an employee of the defendant, was driving its automobile in the performance of his duty as its employee. All the evidence, on the contrary, shows that James E. Holton at the time of the collision, was driving defendant’s automobile without its permission, contrary to its instructions, and for his own pleasure. The judgment dismissing the action is therefore affirmed.

Puckett v. Dyer, 203 N. C., 684, 167 S. E., 43, is distinguishable from the instant case. In that case there was evidence for the plaintiff tending to show that the defendant Jim Dyer was driving the automobile owned by his codefendant and employer, on the business of his employer. It was accordingly held that the evidence for the plaintiff, although controverted by evidence for the defendant, was properly submitted to the jury. In the instant case there was no evidence for the plaintiff tending to show facts on which the defendant is liable to the plaintiff on the principle of respondeat superior.

The judgment dismissing the action is

Affirmed.