Martin v. Greensboro-Fayetteville Bus Line , 197 N.C. 720 ( 1929 )

Stacy, C. J.,

after stating the case: When it is sought to hold one responsible for the neglect or tort of another, under the doctrine of ,respondeat 'superior, at least 'three things’ must 'be made to appear, yea four, and, upon denial of liability, the plaintiff must offer “some evidence which reasonably tends to prove every fact essential to his success” (S. v. Bridgers, 172 N. C., 879, 89 S. E., 804). These are,:

1. That the plaintiff was injured by the negligence of the alleged wrongdoer. Hurt v. Power Co., 194 N. C., 696, 140 S. E., 730.

2. That the relation of master and servant, employer and employee, or principal and agent, existed between the one sought to- be charged and the alleged tort-feasor. Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096.

3. That the neglect or wrong of the servant, employee, or agent, was done in the course of his employment or in the scope of his authority. Ferguson v. Spinning Co., 196 N. C., 614, 146 S. E., 597; Fleming v. Knitting Mills, 161 N. C., 436, 77 S. E., 309.

4. That the servant, employee or agent, was engaged in the work of the master, employer, or principal, and was about the business of his superior, at the time of the injury. Gurley v. Power Co., 172 N. C., 690, 90 S. E., 943.

' It is elementary law that the master is responsible for the negligence of his servant which results in injury to a third person when the servant is acting within the scope of his employment and about the master’s business. Roberts v. R. R., 143 N. C., 176, 55 S. E., 509; 8 L. R. A. (N. S.), 798, 10 Ann. Cas., 375. It is equally elementary that the master is not responsible if the negligence of the servant which caused the injury occurred while the servant was engaged in some private matter of his own or outside the legitimate scope of his employment. Bucken v. R. R., 157 N. C., 443, 73 S. E., 137; Doran v. Thomsen, 76 N. J. L., 754.

It is further held that the owner of an automobile is not liable for injuries caused by it, merely because of ownership. Linville v. Nissen, supra. And it is well settled by numerous decisions, here and elsewhere, that “the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of such neglect or wrong, at the time and in respect to the very transaction out of which the injury arose.” Wyllie v. Palmer, 137 N. Y., 248; Doran v. Thomsen, supra; Wilkie v. Stancil, 196 N. C., 794, 147 S. E., 296; Grier v. Grier, 192 N. C., 760, 135 S. E., 852.

In the instant case it could hardly be said that Bullock was the servant of the defendant in bringing the bus back to the storage garage, or that Griffin was acting Avithin the scope of his employment and about the defendant’s business, when he took the bus to drive himself and family home. Cotton v. Transportation Co., ante, 709. It is universally held that “the master is not responsible if the wrong done by the servant is done without his authority and not for the purpose of executing his orders or doing his work. So that, if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another, not within the scope of his employment, the master is not liable.” Howe v. Newmarch, 94 Mass., 49.

Speaking to the subject in Dover v. Manufacturing Co., 157 N. C., 324, 72 S. E., 1067, Brown, J., delivering the opinion of the Court, said: “This doctrine of respondeat*superior, as it is now established, is a just but a hard rule. The master exercises care in the selection of his servant and retains in his service only such servants as are prudent and trustworthy; the servant in the prosecution of the master’s business must of necessity pass beyond his sight and out of his control; and yet the law makes the master liable for the conduct of the servant. The application of this principle without working the greatest injustice to every employer of a servant is made possible only by the limitation established by the courts, that when the servant does an act which is not within the scope of his employment the master is not liable. ‘Beyond the scope of his employment the servant is as much a stranger to the master as any third person, and his act in that case cannot be regarded as the act of the master. The rule as it is now established by the later judicial declarations should be strictly held within its defined limits. It is a rule capable of great abuse and much hardship and the courts should guard against its extension or misapplication.’ Holler v. Ross, 68 N. J. Law, 324.”

The decisions in Misenheimer v. Hayman, 195 N. C., 613, 143 S. E., 1, and Freeman v. Dalton, 183 N. C., 538, 111 S. E., 863, both strongly relied upon by plaintiff, are not in conflict with our present position or with any of the cases above cited. In the first, it is expressly stated that to hold the master liable for the tort of the servant, the plaintiff must show “that the driver of the truck was acting-within the scope of his authority and in furtherance of his employer’s business,” citing in support of the position: Freeman v. Dalton, supra, and Clark v. Sweaney, 176 N. C., 529, 97 S. E., 474. In the second, the only question presented and decided was that the trial court erred in instructing the jury, “if the plaintiff has satisfied you by the greater weight of the evidence that he was injured by the defendant’s automobile, then the burden would be on the defendant to show by the greater weight of the evidence that although he was the owner of the automobile, it was not being used in his business.” This was the extent of the decision in Freeman's case, and while some expressions in the opinion, not necessary to the decision, may be out of line with the holdings in other cases, e. g., Wilkie v. Stancil, 196 N. C., 794, 147 S. E., 296, Tyson v. Frutchey, 194 N. C., 750, 140 S. E., 718, Grier v. Grier, 192 N. C., 760, 135 S. E., 852, Reich v. Cone, 180 N. C., 267, 104 S. E., 530, and Bilyeu v. Beck, 178 N. C., 481, 100 S. E., 891, it should be remembered, as pointed out by Marshall, C. J., in U. S. v. Burr, 4 Cranch, 470, that “Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered.”

Applying these principles to the facts before us, it would seem that the plaintiff ought not to recover of the defendant.

Affirmed.