Pinnix v. Griffin , 219 N.C. 35 ( 1941 )

Sea well, J.

"We think the evidence was sufficient to be submitted to the jury on the question of Griffin’s negligence. That question does not seem to have been raised in the court below and needs no extended discussion here. But, regardless of Griffin’s negligence, which one must assume the jury might have found, the appellee strenuously insists that there is nothing in the evidence that would impute such negligence to it, on the doctrine respondeat superior. It is argued that the evidence fails to show that Griffin, its employee,'was about his employer’s business at the time of the alleged negligent conduct, and that the employer, at any rate, should not be held, liable for his acts in the use of his own automobile.

Griffin, a whole-time employee, on salary, appeared at the Eogers home on Jackson Street a few minutes before the accident, with an insurance collection book in his hand, calling for certain workers who had recently moved in. It was in the middle of the afternoon of what is ordinarily termed a working day. A reasonable inference from this is that he was, at the time, engaged in the duties of his employment. That inference could not be defeated in the few minutes it took Griffin to reach Westover Terrace, still within his collection territory, and run into the deceased.

In Barrow v. Keel, 213 N. C., 373, 196 S. E., 366, the point at issue was whether Quinn, an employee of Neel, was at the time of an alleged negligent injury “about his master’s business.” The fact that Quinn had on his person some checks “payable to persons in the vicinity of Newport,” who had sold tobacco in defendant’s warehouse the week before, was considered, amongst other things, evidence on that point for the jury. Griffin was found with an insurance collection book in his hands, in the territory where it was his duty to be, on a contract which called for his whole time.

Where the actual employment is admitted, courts should be slow to assume that there has been any deviation from the course of employment upon speculative hypothesis. In Cole v. R. R., 211 N. C., 591, 597, 191 S. E., 353, it is aptly said: “Moreover, it is well settled, as stated in 39 C. J., 1284, and quoted with approval in Colvin v. Lumber Co., 198 N. C., 776, that ‘where it is doubtful whether a servant was acting within the scope of his authority, it has been said that the doubt will be resolved against the master because he set the servant in motion, at least to the extent of requiring the question to be submitted to the jury.’ ” Long v. Eagle Store Co., 214 N. C., 146, 151, 198 S. E., 573; Robinson v. McAlhaney, 214 N. C., 180, 183, 198 S. E., 647; Daniel v. Packing Co., 215 N. C., 762, 765, 3 S. E. (2d), 282. We regard the evidence as sufficient to carry the ease to the jury on the point considered.

Hitherto, we have not discussed the excluded statement of Griffin at the scene of the wreck that he was going into Sunset Hills to make collections. It was clearly competent, for the purpose offered, under Smith v. Miller, 209 N. C., 170, 173, 183 S. E., 370 :

“The defendant objected to testimony offered by the plaintiff tending to show that immediately after the plaintiff was injured, Paul Miller said that at the time he struck and injured the plaintiff with defendant’s automobile, he was going after defendant’s morning newspaper.

“This objection was overruled, and properly so. The testimony was not offered as evidence tending to show that Paul Miller was an employee or agent of the defendant Jerry Swaim. The admission to that effect in the answer of the defendant had been offered in evidence by the plaintiff. There was ample evidence tending to show that Paul Miller habitually drove the automobile owned by the defendant Jerry Swaim as his employee. Therefore, Brown v. Wood, 201 N. C., 309, 160 S. E., 281, has no application to the instant case. The testimony was offered as evidence tending to show that at the time the plaintiff was injured by the negligence of Paul Miller, the said Paul Miller was acting within the scope of his employment by the defendant Jerry Swaim. It was competent and properly admitted for that purpose. There was no error in the ruling of the judge of the Superior Court to that effect. See Brittain v. Westall, 137 N. C., 30, 49 S. E., 54.”

It is proper to consider this testimony on a successful motion to nonsuit. The trial court, however well intentioned, will not be permitted to trim down plaintiff’s ease by the exclusion of competent evidence and throw it out of court for the lack of it.

May the negligence of a servant in the use of his own car in the master’s business render the latter liable for an injury when such use is habitual and known to the master, or could, by reasonable diligence, have been known to the master? From the wide field of encyclopedic law many decisions may be cited pro and con on this subject, and some of the opinions cited in the briefs in the instant case maintain the position taken by the respective courts with commendable vigor. But it is no longer an open question in tbis State. For well considered reasons, no doubt, tbis Court bas adopted tbe view that tbe employer is liable where tbe employee causes an injury by tbe negligent operation of bis own car, used in tbe prosecution of tbe employer’s business, wben tbe latter knew, or should have known, that be was so using it.

In Davidson v. Telegraph Co., 207 N. C., 790, 178 S. E., 603, a messenger boy, employed by defendant, used bis own car in delivering a message, and injured a pedestrian through bis negligence. A verdict against tbe employer was sustained, upon demurrer, Chief Justice Stacy, in a terse opinion, saying for a unanimous Court: “It is likewise in evidence that tbe defendant knew, or should have known, that Mills was in tbe habit of using bis automobile to deliver messages.” Miller v. Wood, 210 N. C., 520, 187 S. E., 765; Barrow v. Keel, supra.

From some of tbe jurisdictions bolding tbis view we cite: Cotton Mills v. Byrd, 38 Ga. App., 241, 143 S. E., 610; Tel. Co. v. Michael, 120 Fla., 511, 163 So., 86; Tucker v. Home Stores, 91 S. W. (2d), 1153; Marchand v. Russell, 257 Mich., 96, 241 N. W., 209.

We think tbe evidence as to tbe liability of the defendant Insurance Company should be submitted to tbe jury, under appropriate instructions.

Tbe judgment of nonsuit is

Eeversed.