Russell Ex Rel. Russell v. Cutshall

BaeNiiill, J. There is no contention tbat tbe defendant’s driver bad express authority to take on passengers. Hence tbe one question here presented is this: Was Outshall, under tbe circumstances existing at the time, acting within the apparent scope of bis authority when be invited or permitted plaintiff to ride on tbe running board of tbe defendant’s truck? Ordinarily, one who is engaged to operate a motor vehicle has no implied authority, by virtue of bis employment, to invite or permit third persons to ride; and tbe employer is not liable for personal injuries sustained by the invitee while riding in such machine except, perhaps, when willfully or maliciously inflicted. Dover v. Mfg. Co., 157 N. C., 324, 72 S. E., 1067; Cotton v. Transportation Co., 197 N. C., 709, 150 S. E., 505; Cole v. Motor Co., 217 N. C., 756, 9 S. E. (2d), 425; 35 Amer. Jur., 1016; 5 Blashfield Cyc. Auto. L. & P., 146 (see n. 72 for authorities), 148; Looney v. Bingham Dairy, 282 Pac., 1030, 73 A. L. R., 427; Union Gas and Electric Co. v. Crouch, 174 N. E., 6, 74 A. L. R., 160; Wigginton Studio v. Reuter’s Adm’r, 254 Ky., 128, 71 S. W. (2d), 14; Yanowitz v. Pinkham, 168 Atl., 700; Bilow v. Kaplan, 164 Atl., 694; Morris v. Dame’s Ex’r, 171 S. E., 662; Hartman v. Badger Tobacco Co., 246 N. W., 577, Anno. 74 A. L. R., 163; Rolfe v. Hewitt, 125 N. E., 804, 14 A. L. R., 125; Morris v. Fruit Co., 124 S. E., 807. See, also, 5 Blashfield CyC. Auto. L. & P., 152. In tbe Cotton case, supra, tbe plaintiff, as here, was invited to ride on tbe running board of tbe vehicle. Judgment for plaintiff was vacated, and tbe motion to dismiss as in case of nonsuit was sustained. Tbe particular nature of tbe employment, or tbe circumstances existing at tbe time, or acquiescence on tbe part of tbe employer may create an exception to this general rule. Fry v. Utilities Co., 183 N. C., 281, 111 S. E., 354; Hayes v. Creamery, 195 N. C., 113, 141 S. E., 340; Cole v. Motor Co., supra. *355 In an effort to bring bis case witbin tbe exceptions to tbe general rule plaintiff alleges in bis complaint, as tbe basis of bis claim, that Cutsball was acting witbin tbe scope of bis implied authority: “that tbe defendant customarily carried passengers in tbe conduct of tbeir business in tbis area of Spring Creek for tbe purpose of creating good will for tbe corporate defendant, advertising its products, and in otherwise promoting tbe interest of tbe defendant Company.” There is a total absence of any evidence in tbe record tending to sustain tbis allegation. On tbe contrary, plaintiff himself testified that be bad not theretofore seen any driver of tbe defendant carrying a passenger. Hence knowledge and consent on tbe part of tbe employer cannot be implied so as to support an inference that tbe driver was acting witbin bis ostensible authority. But in tbe course of tbe cross-examination of plaintiff be testified: “I did not ask him to let me ride, I didn’t ask him that. Tbe driver did want me to go to Mrs. Connor’s store and show him tbe way up there . . . said I could ride to tbe store and I could go and be would bring me right back with him. . . . Tbe only reason on earth for him to ask me to go and show him where my aunt, Yirgie Connor’s store was, only to show him tbe way.” Although there is no allegation that tbe plaintiff was invited to go along to “show him tbe way,” be cites tbis evidence as tending to show an emergency in which Cutsball was authorized to and did act in behalf of bis employer in obtaining assistance. Conceding that in case of an urgent emergency an employee at times may act so as to bind bis employer without previous authority, Barrier v. Thomas and Howard Co., 205 N. C., 425, 171 S. E., 626; Perkins v. Wood and Coal Co., 189 N. C., 602, 127 S. E., 677; Vassor v. R. R., 142 N. C., 68, 54 S. E., 849, no such emergency is disclosed on tbis record. Bluff is on Highway 209 and “tbe man couldn’t get lost on tbis road going to my aunt’s store unless be turned off on another road. There is no highway turning off. Tbis was a U. S. Highway well marked. McGaha (one of tbe other passengers) was familiar over in that country. He knew where my aunt’s store was. I have seen him there before.” So plaintiff testified. Tbe case of D’Allesandro v. Bentivoglia, 285 Pa., 72, 131 Atl., 592, in which tbe employee took a boy fourteen years of age to guide him to an unknown destination, is directly in point. It is there said: “Entirely aside from tbe question of tbe plaintiff’s contributory negligence in riding on tbe running board of a moving motor car, we agree with tbe court below that ‘an employer is liable only for tbe acts of bis servant done in tbe scope of bis employment, and tbe employment in tbis case did not include taking tbe minor plaintiff for a ride’ either as ‘a passenger,’ which tbe statement of claim alleges be was, or as an assistant *356 {Byrnes v. Pittsburgh R. Co., 259 Pa., 357, 361, 103 A., 53, L. R. A. 1918-C, 1198; see, also, Hughes v. Murdoch S. & T. Co., 269 Pa., 222, 112 A., 111) ; for no suck emergency is shown by the record befoi-e us as would warrant the driver of the truck is (sic.) imposing the responsibility of an employer of the minor plaintiff on defendant. Unless an emergency is shown where the servant is unable alone to perform the work which he was engaged to do, authority to employ an assistant is not proved. Byrnes v. Pittsburgh B. Co., supra.” We conclude that when Cutshall invited or permitted plaintiff to ride on his master’s vehicle, which was designed to haul freight and not passengers, he went beyond the scope of his employment. As to the corporate defendant, plaintiff was a trespasser. It is not liable in damages for the personal injuries sustained by him. In view of our conclusion here we need not decide whether, in any event, the contributory negligence of plaintiff would bar recovery. The judgment of the court below is Affirmed.