Ellis v. American Service Co. ( 1954 )

82 S.E.2d 419 (1954) 240 N.C. 453

ELLIS
v.
AMERICAN SERVICE CO., Inc. et al.

No. 750.

Supreme Court of North Carolina.

June 4, 1954.

P. W. Glidewell, Sr., Reidsville, Carroll & Pickard, A. M. Carroll, Burlington, and J. A. Webster, Leaksville, for plaintiff, appellant.

Armistead W. Sapp, Greensboro, for American Service Co., Inc., and Burlington Ice Delivery Co., Inc., defendants, appellees.

Cooper, Long, Latham & Cooper, Burlington, for Cities Ice Service Co., Inc., defendant, appellee.

BOBBITT, Justice.

An employer is liable where his employee causes injury by negligent operation of the employee's automobile while in use in the prosecution of his employer's business, when the employer knows or should know that the employee is so using it. Davidson v. Western Union Telegraph Co., 207 N.C. 790, 178 S.E. 603; Miller v. Wood, 210 N.C. 520, 187 S.E. 765; Pinnix v. Griffin, 219 N.C. 35, 12 S.E.2d 667; 5 Am. Jur. p. 728, Automobiles sec. 393; 60 C.J.S. Motor Vehicles, § 453, p. 1159.

In Davidson v. Western Union Telegraph Co., supra, a Western Union messenger was using his own automobile to deliver messages for his employer. In Pinnix v. Griffin, supra, an insurance agent was engaged in the collection of insurance premiums for his employer. In Miller v. Wood, supra, a case cited by appellant as on "all-fours" with this case, the owner-operator of the automobile had supervision of the machinery at each of the defendant's several plants, used his personal car in going from plant to plant in the course of his duties, and on the occasion of plaintiff's injuries was on his way from one plant to another with parts and tools for the purpose of making repairs.

Haney being an employee of the Delivery Company, the test of its liability is whether Haney, while driving his personal car from the Cities plant towards the American plant to get the truck for use in his employer's business, was engaged in the service of and was acting for his employer. Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296; Carter v. Thurston Motor Lines, 227 N.C. 193, 41 S.E.2d 586.

An employee is not engaged in the prosecution of his employer's business while operating his personal car to the place where he is to perform the duties of his employment, Wilkie v. Stancil, supra, nor while leaving his place of employment to go to his home, Rogers v. Carolina Garage, 236 N.C. 525, 73 S.E.2d 318. Compare: Bray v. W. H. Weatherly & Co., 203 N.C. 160, 165 S.E. 332, and cases cited therein, in which the question was whether the employee sustained an injury "by accident arising out of and in the course of" his employment within the meaning of G.S. § 97-2(f).

It is clear that if Haney were on his way from his home to get the truck, which had to be loaded with ice at the Cities plant before he could set out on his delivery route, and while en route to the American plant had injured plaintiff by the negligent operation of his personal car, the Delivery Company would not be liable. The question then is: should liability be cast on the Delivery Company solely on the basis of the circumstance that Haney, for no reason other than his personal preference and convenience, chose to go directly to the Cities plant and do his separate work there before getting his own truck for the purpose of loading it and making deliveries therefrom along his route? Our answer is, No.

In limine, we notice the fact that the Delivery Company had no right of control over Haney's use of his personal car. Under the Massachusetts rule, this alone would absolve the Delivery Company. Reardon v. Coleman Bros., 277 Mass. 319, 178 N.E. 638. Nor did the Delivery Company have any responsibility for its condition, upkeep or operation. But these facts alone are not determinative under our decisions.

Decision here rests upon the ground that no duty of Haney to the Delivery Companycontemplated or required that he use his personal car in performance thereof. He was not directed to so use it nor did any necessity exist for its use. Mr. Freeman, his superior, asked Haney why he didn't get his truck first and then go to the Cities plant. The record discloses no answer apart from personal preference or habit on the part of Haney, uninfluenced by any benefit or value to his employer. The most that the evidence discloses is that Freeman acquiesced in Haney's use of his personal car in going to the American plant where his truck was kept. Haney's duty was to get the truck (this being his only reason for going to the American plant) and then operate it in his employer's service and for his benefit. The time and mode of transportation to the American plant was up to Haney and a matter of indifference to his employer. Haney chose to use his personal car in his own way in accordance with his personal preference or convenience. It was never used in connection with the sale and delivery of ice or otherwise in the service of his employer.

Cases in other jurisdictions relating to an employer's liability for negligence of an employee while driving his own car are numerous and different results are reached in divergent factual situations: See Annotations: 57 A.L.R. 739; 60 A.L.R. 1163; 112 A.L.R. 920; 140 A.L.R. 1150.

In the absence of evidence: (1) that the Delivery Company had any right of control over Haney's car or responsibility for its condition, upkeep or operation; or (2) that Haney's car was used otherwise than for the one purpose of transporting himself to the American plant to get the truck kept there for his use in the performance of his duties; or (3) that Haney's use of his personal car was required, contemplated or necessary in the performance of his duties; or (4) that his use of his personal car was of benefit or advantage to his employer or for any purpose other than his personal preference or convenience: we conclude that Haney, while driving his personal car towards the American plant, under the circumstances disclosed by plaintiff's evidence, was not then engaged in the prosecution of the Delivery Company's business. This conclusion renders unnecessary discussion of plaintiff's further contention that the Delivery Company was a mere instrumentality, agency or department of the other corporate defendants and for this reason they too were liable for Haney's negligence.

Accordingly, the rulings of the court below in allowing motions for judgment of involuntary nonsuit as to the corporate defendants are affirmed. A formal judgment, predicated on such rulings, should be entered in the court below.

Affirmed.