McIlroy v. Akers Motor Lines, Inc.

Devin, I. That the injuries of which plaintiff complained were caused by the negligence of the defendant Philemon in the operation of the motor truck of the corporate defendant was not denied. But the effort of the plaintiff to hold Philemon’s employer, the defendant Akers Motor Lines, Inc., responsible for his negligence encountered serious opposition. The plaintiff in the first place alleged that the truck at the time of and in respect to the transaction complained of was being driven by Philemon in the course of the corporate defendant’s business, and within the scope of his employment. In order to support this allegation by proof plaintiff was under necessity of using in evidence the adverse examination of Philemon and that of two other employees of defendant Motor Lines. From this evidence it is apparent that at the time of the injury Philemon *513 ivas riot about bis employer’s business but engaged in activities and purposes of bis own entirely apart therefrom. In violation of bis instructions to take the truck out for a particular purpose, requiring not more than an hour, and then return it to defendant’s yard, Philemon used the truck solely for his own pleasure and purpose, without the knowledge or consent of the employer, and not in furtherance of its business. There was a total departure from the employer’s business and the work he was instructed to perform. The evidence was insufficient to support recovery on the theory of respondeat superior. Rogers v. Black Mountain, 224 N. C. 119, 29 S. E. (2) 203; Walker v. Manson, 222 N. C. 527, 23 S. E. (2 ) 839; Creech v. Linen Service Corp., 219 N. C. 457, 14 S. E. (2) 408; McLamb v. Beasley, 218 N. C. 308, 11 S. E. (2) 283; Parrott v. Kantor, 216 N. C. 584, 6 S. E. (2) 40; Liverman v. Cline, 212 N. C. 43, 192 S. E. 849: Martin v. Bus Line, 197 N. C. 720, 150 S. E. 501. The plaintiff, however, sought recovery against the corporate defendant upon another principle. He alleged that the defendant had knowingly, or without due investigation, employed an unfit person to drive its truck on the highway, and particularly on the occasion complained of, had directed such driver to operate the truck on the highway when it had reason to know that he was then under the influence of intoxicating liquor. The issue submitted without objection on this point presented the single question. “Was the plaintiff injured and his automobile damaged by reason of the negligence of the Akers Motor Lines, Inc., in entrusting the operation of said truck to said Philemon as alleged in the complaint?” The allegation was that defendant “knew or in the exercise of due care should have known that Philemon was under the influence of intoxicants” at the time the truck was entrusted to him on 24 December, 1945. No other issue on any other phase of the pleadings or proof was presented by the plaintiff to the court or by the court submitted to the jury. The proof offered by the plaintiff on the quoted issue was that Philemon had had one drink of whiskey two hours before he was directed to drive the truck, and that this was without the knowledge of the defendant’s manager who gave the direction or of anyone in authority. Philemon asserted he was not intoxicated at the time. The plaintiff offered evidence that Philemon had previous to his employment by defendant been convicted of drunkenness and drunken driving, and that the one under whom he worked at his last employment by the City was not asked about him, though defendant’s witness testified that inquiry was made and favorable response elicited. But there was no evidence of Philemon’s unfitness or delinquency during the eight months preceding the injury, though his conduct during that time had been checked in due course by the defendant. Plaintiff seemed to have based his case on the theory that defendant had entrusted the operation of its truck on this occasion to one whom it knew or should have *514 known was under the influence of intoxicants. Tte evidence offered is insufficient to sustain this view. Unquestionably liability on tbe part of the owner of a motor vehicle may arise from his entrusting the operation of the vehicle to one who is incompetent to drive it, or who is known to be reckless, or is intoxicated, or from known habit is likely to become intoxicated. Williamson v. Eclipse Motor Lines, 145 Ohio St. 467, 168 A. L. R. 1356; Crowell v. Duncan, 145 Va. 489, 50 A. L. R. 1425; Fisher v. Fletcher, 191 Ind. 529, 22 A. L. R. 1392; 5 Blashfield Cyc. Auto. Law, 63. But knowledge on the part of the owner that the driver sometimes drank to excess but was not intoxicated when put in possession of the automobile was held in Fisher v. Fletcher, supra, insufficient to invoke this rule. It seems fairly deducible from the decisions in this and other jurisdictions that the principle of the liability of the owner based upon his knowledge of the unfitness of the driver is applicable where there is evidence of a known habit of intoxication (Nicholson Construction Co. v. Lane, 177 Tenn. 440); or addiction to intoxicants (168 A. L. R. 1375); or likelihood of the driver becoming intoxicated (Grier v. Grier, 192 N. C. 760, 135 S. E. 852); or that he is given to the habitual and excessive use of liquor (Taylor v. Caudle, 210 N. C. 60, 185 S. E. 446). Liability depends upon the knowledge or imputable knowledge of the owner of the driver’s unfitness at the time the vehicle is entrusted to him. Tyree v. Tudor, 183 N. C. 346, 111 S. E. 714; Shorter v. Cotton Mills, 198 N. C. 27, 150 S. E. 409; Grier v. Grier, supra; Harrison v. Carroll, 139 F. (2) 427, 50 A. L. R. 1450 (Annotation). In the case at bar the defendant’s investigation of the fitness of Philemon as a truck driver at the time he was employed in April 1945 was rather perfunctory, but from plaintiff’s evidence it appears that he drove this truck regularly in defendant’s service for eight months, during which time his conduct vas under observation, without evidence of accident or of drinking or addiction to intoxication. Nor is there evidence that when Philemon was directed to drive the truck 24 December, 1945, his appearance indicated he was intoxicated or had been drinking. One of the witnesses whose examination was offered by plaintiff testified Philemon “acted sober.” No injury occurred on this occasion while Philemon was performing the duty assigned him by the defendant, nor was the evidence such as to show that the injury complained of, which occurred some eight hours later, was under the circumstances probable (Robertson v. Aldridge, 185 N. C. 292 (296), 116 S. E. 742); or was likely to occur (Reich v. Cone, 180 N. C. 267, 104 S. E. 530; Hawes v. Haynes, 219 N. C. 535, 14 S. E. (2d) 503) ; or could reasonably have been foreseen when the truck was entrusted to Philemon for a temporary specific purpose. Lee v. Upholstery Co., 227 N. C. 88, 40 S. E. (2) 688; Grier v. Grier, supra. *515 For the reasons stated, we conclude that the evidence was insufficient to warrant submission of the 2nd and 3rd issues to the jury, and that the motion of defendant Akers Motor Lines, Inc., for judgment of nonsuit should have been allowed. The judgment below is Reversed.