Jackson Ex Rel. Porter v. Scheiber

Clarkson, J. At the close of plaintiff’s evidence the defendant Scheiber made a motion in the court below for judgment as in case of nonsuit. C. S., 567. The motion was allowed, and in this we can see no error. The plaintiff, while sitting near the east side of South Alexander Street, was struck by an automobile which belonged to the defendant George E. Scheiber, and which was being driven by the defendant Robert Pearson. Pearson was employed by Scheiber as a house servant and had gone to a cleaning establishment to get a suit of clothes for his employer. At the time of the collision he was carrying the suit to the Addison Apartments, in accordance with Scheiber’s instructions. On the return trip to the apartment house he stopped by his own house on South Alexander Street, which was approximately 1,000 feet from the Addison Apartments, to see his mother and have her to get him a clean shirt for Sunday. The plaintiff was struck after Pearson came out of his home, backed his car north along Alexander Street past the plaintiff, and then started forward south on Alexander Street. *446 We think on the entire record there was evidence that Robert Pearson, the defendant, was in the employment of his codefendant when the injury was inflicted on John Ben Jackson, the plaintiff. The deviation was of a minor nature, and the evidence was sufficient to make out a prima facie case to be submitted to a jury. In Duncan v. Overton, 182 N. C., 80, we find that: The owner had put his son in charge of the automobile with instructions to drive himself and his baggage to college in Raleigh, and there to put the car in a garage for repairs. Instead of going to the garage, the son met other students at the depot in Raleigh and was driving them out to the college at the time the plaintiff was injured. At p. 82, Clark, C. J., speaking for the Court, says: “The father having placed his son in charge of the machine to bring it from Nashville to A. & E. College at Raleigh, and then to the garage, is responsible for injuries accruing from the negligence of his agent while in charge of the machine on that errand, and is not released therefrom by an incidental divergence in discharging the' duty entrusted to him before the driver reached the garage, such as is testified to in this case.” Lazarus v. Grocery Co,, 201 N. C., 817; Puckett v. Dyer, 203 N. C., 684. The matter has been recently discussed by Schenck, J., in Lertz v. Hughes Bros., Inc., 208 N. C., 490, and sustains the view here taken. The general principle is thus stated in 2 Blashfield Cyclopedia of Automobile Law (1927, ch. 60, p. 1404) : “The question whether a servant, in deviating from the direct route in performing work for the master, thereby departs from the scope of employment, will depend upon the degree of deviation and of the attending circumstances; and, if the deviation is slight and not unusual, it may be determined by the court as a matter of law that he is still engaged in his master’s business, so as to render the latter liable for his negligence in driving, as, for instance, a variation of a couple of blocks in a city or congested traffic and varying conditions.” In fact, the able attorneys for defendant do not seriously controvert the law on this aspect, and in their brief contend that the question involved is as follows: “In an action against the owner of- an automobile on account of injuries sustained through acts of owner’s servant in driving the automobile when all the evidence of the plaintiff tends to show that the injury was intentionally inflicted, and there is no evidence tending to show the contrary, was it error to nonsuit the plaintiff as to the owner?” We think not, under the facts and circumstances of this case. The plaintiff John Ben Jackson was a witness in his own behalf. He had shot Robert Pearson, the defendant, in a quarrel. He testified on cross-examination: “In order to hit me he had to get some part of his automobile over to the east of the drain, out of the roadway, and at *447 that time he had over twenty feet of clear roadway. ... I have said that the last time I had seen Pearson before I got hurt tbat be told me be was going to get me if it was tbe last thing be ever did.” (Recross-examination) : “The question I asked you is, haven’t you stated tbat Pearson ran into you on purpose? Ans.: Yes, sir. Q. And that’s tbe statement you make now, isn’t it? Ans.: Yes, sir.” There was evidence tbat plaintiff was not in tbe street, and where be was sitting tbat Pearson bad to go out of bis traveled way to bit him. Where a servant commits a willful and intentional injury to vent bis spite and bate, although while on bis master’s business, ordinarily tbe master is not liable. In Daniel v. Railroad, 136 N. C., 517 (522-3), we find: “It is not intended to assert tbat a principal cannot be held responsible for tbe willful and malicious acts of tbe agent when done within tbe scope of bis authority, but tbat be is not liable for such acts, unless previously expressly authorized or subsequently ratified, when they are done outside of tbe course of tbe agent’s employment and beyond tbe scope of bis authority, as when tbe agent steps aside from tbe duties assigned to him by tbe principal to gratify some personal animosity or to give vent to some private feeling of bis own (McManus v. Crickett, 1 East., 106), and, as is forcibly stated by Lord Kenyon in tbe case cited, quoting in part from Lord Holt: No master is chargeable with tbe acts of bis servant but when be acts in tbe execution of tbe authority given him. Now when a servant quits sight of tbe object for which be is employed, and without having in view bis master’s orders pursues tbat which bis own malice suggests, be no longer acts in pursuance of tbe authority given him, and bis master will not be answerable for bis acts.” Southwell v. R. R., 189 N. C., 417 (419); S. c., 191 N. C., 153, 275 U. S., 65, 72 Law Ed., 157. It is said by Hoke, J., in Foot v. Railroad, 142 N. C., 51 (53-4) : “Tbe breach of duty can be and frequently is intentional and willful, and yet tbe act may be negligent; and it is only when there has been designed injury caused, or an intended damage done, tbat tbe idea of negligence is eliminated.” Roberts v. R. R., 143 N. C., 176; Jones v. R. R., 150 N. C., 473; Norman v. Porter, 197 N. C., 222. Sherman & Redfield on Neg., secs. 3 and 4. Accordingly, we find tbe term “willful and wanton negligence” is coming to be not infrequently used both in tbe decisions and textbooks. 1 Thompson Com. on Neg., sec. 21; 2 Thompson, sec. 1626; Railway v. Bryan, 107 Ind., 51; Express Co. v. Brown, 67 Miss., 261. Tbe facts on this record disclose tbat Robert Pearson, when be inflicted tbe injury, stepped aside and did an individual wrong, to carry *448 out his threat, spite, and hate, and the purpose was personal to himself, and he alone is liable to plaintiff under the facts and circumstances of this case. Pearson was not a witness in the trial below. What he said in the recorder’s court was evidence against himself, but, as to defendant Scheiber, it was hearsay and incompetent, and properly excluded. The type of evidence excluded, and which plaintiff excepted and assigned error to, we do not think competent. In Wimberly v. R. R., 190 N. C., 447, it is said: “Animadverting on a similar situation in Shell v. Roseman, 155 N. C., 94, Allen, J., said: ‘We are not inadvertent to the fact that the plaintiff made a statement on cross-examination as to a material matter, apparently in conflict with his evidence when examined in chief, but this affected his credibility only, and did not justify withdrawing his evidence from the jury. Ward v. Mfg. Co., 123 N. C., 252.’” Shaw v. Handle Co., 188 N. C., 236; In re Fuller, 189 N. C., 512; Southwell v. R. R., 191 N. C., 153, at p. 165. We see no such conflict as set forth in the above cases on the entire record in this case that would require the case to be submitted to the jury. For the reasons given, the judgment must be Affirmed.