Riddle Ex Rel. Riddle v. Whisnant

CiaeksoN, J. At the close of the plaintiff’s evidence, on motion of defendant J. E. Guy, the court below granted judgment as in case of nonsuit as to him. C. S., 567. In this we can see no error. On a motion to nonsuit, the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference drawn therefrom. There seems to be no controversy that the plaintiff was seriously injured by the negligence of Wilburn Whisnant. He filed no answer to the charge of negligence made by plaintiff against him. The questions involved: At the time of the injury to plaintiff, was Wilburn Whisnant acting as agent and servant of J. E. Guy; if so, was he acting in the scope of his employment at the time of the accident? We think the answers must be No. *134 The strongest evidence for plaintiff was that of Wilburn Whisnant, a defendant and driver of the car. He testified, in part: “I was paid a straight salary of $10 per week. I worked there in the shop part of the time. There was no agreement what I was to do, whether I was to sell' cai’s, or mechanic, or what. I never sold a car. I would work around there from around eight o’clock in the morning to five in the afternoon, I would say, something like that. ... I did not tell him (J. E. Guy) anything about going to Micaville and I didn’t tell him anything about going anywhere with the car on Sunday.” In Grier v. Grier, 192 N. C., 760 (763), is the following: “The answer to this question depends upon whether or not the salesman, at the time of committing the negligent act, was acting within the ‘scope of his employment.’ One of the leading cases in this State on the question of ‘scope of employment’ is Sawyer v. R. R., 142 N. C., 1. Justice Hoke, quoting from Wood on Master and Servant, says: ‘The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred or fairly implied from the nature of the employment and the duties incident to it. The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof and were such as may fairly be said to have been authorized by him. By “authorized” is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.’ ” In Covington v. Threadgill, 88 N. C., 186 (189), we find: “In Melvin v. Easley, 7 Jones, 356, it was conceded by the whole Court, though they differed as to other points, that a contract made on Sunday was illegal, and could not support an action, upon the ground that the Act of 1741 (Bat. Rev., ch. 115, -sec. 1) declared that ‘no person shall on Sunday exercise the work of his ordinary calling, upon pain that he should forfeit and pay one dollar, and it was expressly said that no distinction could be admitted between contracts made in contravention of the policy of the law, whether malum in se or malum prohibitum The trip made in defendant’s automobile was on Sunday, not in the scope of Whisnant’s employment, and was without Guy’s permission. The purpose was personal — an outing and visit by Whisnant, taking his wife and two children with him. Whisnant went on an errand of his own (to get his wife and children) when the accident occurred. He testified: “Fred Thomas and I went to the Jig Mine and I left Fred Thomas at the Jig Mine. That was about five miles East of Micaville. *135 I then went back to Mieaville to get my family. Fred Thomas was not with me when I went back to Mieaville. I got my wife and children and Pearl Wilson and it was about dusk then. I was going hack to see Fred Thomas. I wanted to see him before I went home. ... I went back and got my family in Mieaville and then was going East when this accident happened. This accident happened before I got back to the point where I had left Fred Thomas.” In Blashfield Cye., Vol. 5, pages 175-6, see. 3029, the following rule is laid down: “The general rule is that a servant in charge of his master’s automobile, who, though originally bound upon a mission for his master, completely forsakes his employment and goes upon an errand exclusively his own, and while so engaged commits a tort, does not thereby render the master answerable for such tort under the rule of respondeat superior,” citing a wealth of authorities. Parrott v. Kantor, 216 N. C., 584. We think the cases cited by plaintiff distinguishable from the present one. We see no error in the exclusion of the evidence in regard to an agreement as to inspecting the automobile of Fred Thomas. It was immaterial and irrelevant. For the reasons given, the judgment of the court below is Affirmed.