Rogers v. Town of Black Mountain

Stacy, C. J. Conceding tbat negligence on tbe part of tbe driver of' tbe truck bas been shown which resulted in plaintiff’s intestate’s death, still tbe record is barren of any evidence sufficient to bold tbe defendant liable under tbe doctrine of respondeat superior. Cole v. Motor Co., 217 N. C., 756, 9 S. E. (2d), 425; Martin v. Bus Line, 197 N. C., 720, 150 S. E., 501. Tbe driver of tbe truck was not about tbe defendant’s business “at the time of and in respect to tbe transaction out of which tbe injury arose.” McLamb v. Beasley, 218 N. C., 308, 11 S. E. (2d), 283; Liverman v. Cline, 212 N. C., 43, 192 S. E., 849. He bad departed from tbe work be was employed to do, and bad gone, with other employees, on a pleasure trip in violation of previously given instructions. Cotton v. Transportation Co., 197 N. C., 709, 150 S. E., 505. All of the boys on tbe truck were aware of tbe fact that they were disobeying instructions in taking the trip. Hayes v. Creamery, 195 N. C., 113, 141 S. E., 340. If tbe driver had taken other pleasure trips, on other occasions, and invited others to ride with him on such trips, there is no evidence tbat tbe defendant knew it. Cotton v. Transportation Co., supra. This is-the crucial circumstance in tbe case. Russell v. Cutshall, 223 N. C., 353, 26 S. E. (2d), 866. It is true, the driver bad driven the truck a number of times on tbe highway while about the defendant’s business, but there is no evidence tbat be allowed others to ride with him on these occasions. See Anno. 14 A. L. R., 145. It is elementary tbat tbe master is responsible for the tort of his-servant which results in injury to another when tbe servant is acting in tbe course of'bis employment, and is at tbe time about the master’s business. D’Armour v. Hardware Co., 217 N. C., 568, 9 S. E. (2d), 12; Barrow v. Keel, 213 N. C., 373, 196 S. E., 366; Roberts v. R. R., 143 *122 N. C., 176, 55 S. E., 509. It is equally well established that the master is not liable if the tort of the servant which causes the injury occurs while the servant is acting outside the legitimate scope of his authority, and is then engaged in some private matter of his own. Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820; Snow v. DeButts, 212 N. C., 120, 193 S. E., 224; Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 897; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137. As a general rule “the master is not responsible if the wrong done by the servant is done without his authority, and not for the purpose of •executing his orders, or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable.” Howe v. Newmarch, 94 Mass., 49. See Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446; Robertson v. Power Co., 204 N. C., 359, 168 S. E., 415; Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503. To state it in another way, the general rule is, that where a servant steps aside from the business of his master for some purpose of his own which is beyond the scope- of his employment, the relation of master and servant is thereby temporarily suspended, and the master is not liable for his acts during the period of such suspension. Walker v. Manson, 222 N. C., 527, 23 S. E. (2d), 839; Smith v. Moore, 220 N. C., 165, 16 S. E. (2d), 701; Creech v. Linen Service, 219 N. C., 457, 14 S. E. (2d), 408; Parrott v. Kantor, 216 N. C., 584, 6 S. E. (2d), 40; Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126. Here it appears that the driver of the truck was on a mission of his own and not performing any work he was employed by the defendant to do. He was therefore about his own business and not that of the defendant at the time of plaintiff’s intestate’s injury and death. See Annotations, 22 A. L. R., 1404; 45 A. L. R., 482; 68 A. L. R., 1055; 80 A. L. R., 727; 122 A. L. R., 863. He was his own master while out driving on a pleasure trip in violation of the defendant’s instructions. This defeats recovery on the theory of respondeat superior. Martin v. Bus Line, supra. The doctrine is inapplicable when' there is no superior to respond. McLamb v. Beasley, supra; Creech v. Linen Service, supra. It results, therefore, that the demurrer to the evidence should have been sustained. G. S., 1-183 (C. S., 567). Reversed.