Temple v. . Stafford

Barnhill, J. The one assignment of error relied on by defendant is bottomed on the refusal of the court below to grant his motion to dismiss as in case of nonsuit, entered at the end of the evidence for plaintiff and duly renewed at the conclusion of all the testimony. This assignment presents the one question: Is there any evidence in the record tending *632 to show that Proctor was the agent or employee of the defendant at the time of and in respect to the transaction out of which plaintiff’s injury and damage arose? Ve are constrained to answer in the negative. The plaintiff insists that Proctor was about his master’s business from the time he left home with the truck to go to South Mills “for the purpose of having the truck greased and brake fluid put in it” until- his return to his home. If this were true, plaintiff’s right to recover could not be successfully challenged. But such is not the case. Plaintiff’s testimony other than that elicited through the adverse -examination of the defendant discloses nothing more than negligence of the driver and ownership of the truck by defendant. Carter v. Motor Lines, ante, 193. On the other hand, the evidence as to the nature of Proctor’s trip to -South Mills and the purpose for which he went is positive and uncon-tradicted. He went while off duty, for his own convenience, without the knowledge of defendant, to have his shoes repaired. Theretofore he had •complained about the condition of the brakes and defendant told him to have brake fluid put in the first time he went for groceries or any other purpose. While in South Mills he recalled these instructions, drove by the filling station and had the truck greased and brake fluid put in. This was merely incidental and when the work was done the mission, if it may be so termed, was complete. He did not go to South Mills to get brake fluid and he was not on his way home from the performance of that duty when the accident occurred. As he was not about his master’s business at the time of the collision bis negligence may not be imputed to defendant. Reich v. Cone, 180 N. C., 267, 104 S. E., 530; Tyson v. Frutchey, 194 N. C., 750, 140 S. E., 718; Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126; Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820; Parrott v. Kantor, 216 N. C., 584, 6 S. E. (2d), 40; McLamb v. Beasley, 218 N. C., 308, 11 S. E. (2d), 283; Hawes v. Haynes, 219 N. C., 535, 14 S. E. (2d), 503; Riddle v. Whisnant, 220 N. C., 131, 16 S. E. (2d), 698; Smith v. Moore, 220 N. C., 165, 16 S. E. (2d), 701. The relationship of master and servant should be pleasant and harmonious. To this end it is not unusual for the master to permit his servant to use, for his own! convenience, the master’s means of conveyance. Perhaps this custom prevails on our farms more than elsewhere. In -any event, this effort of the master to accommodate and assist his servant ■and make his life more pleasant does not bring within the scope of the master’s employment acts of the servant otherwise outside such scope. The master is not so penalized for his kindness. The judgment below is Reversed.