Shapiro v. City of Winston-Salem ( 1938 )

BaeNHIll, J.

It may be that if necessary the Court would take judicial notice of the plan under which a duly constituted agency of the Federal Government operates. In this case, however, it is not necessary for us to do so. The record sufficiently discloses the plan under which the Works Progress Administration was improving Hanes Park, which belongs to the city of Winston-Salem. The uncontradicted evidence discloses that the defendánt Masten Hawkes was on the pay roll of the city of Winston-Salem at the time of the occurrence complained of, which resulted in the death of the plaintiff’s intestate. It also discloses, however, that at said time he was working under the supervision, control and direction of the officials of the Works Progress Administration, and that the city was without authority to give him orders or direction as to the manner or method in which he should perform the work then being done. "While the truck being operated by him was likewise the property of the city, the evidence also discloses that this truck was at the time in the custody of the W. P. A. and was being used under its direction. Under these circumstances the doctrine of respondeat superior as between the defendant Hawkes and the city of Winston-Salem does not apply. While it was an unfortunate occurrence, the city is in nowise liable in damages for the death of plaintiff’s intestate.

' As we are of the opinion that Masten Hawkes was not the servant of the city of Winston-Salem at the time he caused the death of plaintiff’s intestate in the sense that would impose liability upon the city, it is unnecessary for us to discuss the question presented as to whether the improvement of Hanes Park was a governmental function such as would absolve the city in any event.

The judgment below is

Af&rmed.