Jackson v. Mauney

132 S.E.2d 899 (1963)

260 N.C. 388

Howard B. JACKSON v. W. K. MAUNEY, Jr., and Carolina Throwing Company, Inc.

No. 168.

Supreme Court of North Carolina.

October 30, 1963.

*900 McDougle, Ervin, Horack & Snepp, by Frank W. Snepp, Jr., Charlotte, for plaintiff appellee.

Mullen, Holland & Cooke, by James Mullen, Gastonia, for defendant appellant.

Robinson, Jones & Hewson, Charlotte, for defendant appellee.

*901 RODMAN, Justice.

Carolina assigns as error the court's refusal to allow its motion for nonsuit.

Plaintiff alleges he was injured when Mauney, traveling at a high speed, negligently left the channel and entered a shallow cove. The boat grounded, pitching plaintiff into the windshield.

Plaintiff neither alleges nor offered evidence tending to show the grounding was due to a defect in the boat or to Mauney's incompetence. The negligence alleged is Mauney's failure to utilize the knowledge and skill he possessed. Carolina was not liable for plaintiff's injuries merely because it owned the vessel in which plaintiff was riding or because it permitted Mauney to use the boat. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Reich v. Cone, 180 N.C. 267, 104 S.E. 530; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Weatherman v. Ramsey, 207 N.C. 270, 176 S.E. 568; Parrott v. Kantor, 216 N.C. 584, 6 S.E.2d 40; Hawes v. Haynes, 219 N.C. 535, 14 S.E.2d 503; McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530; Grindstaff v. Watts, 254 N.C. 568, 119 S.E.2d 784; Cohee v. Sligh, 259 N.C. 248, 130 S.E.2d 310.

The sole ground on which liability can be imposed on Carolina is the assertion that it is responsible for the acts of Mauney, its secretary.

A master or principal is liable for those acts of his servant or agent done in the performance of the work for which the servant or agent was employed. The relationship must "exist between the wrongdoer and the person sought to be charged for the result of wrong at the time and in respect to the very transaction out of which the injury arose." Creech v. National Linen Service Corp., 219 N.C. 457, 14 S.E.2d 408. Devin, C. J., quotes with approval in Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309, this statement taken from Tiffany on Agency: "A servant is acting in the course of his employment, when he is engaged in that which he was employed to do, and is at the time about his master's business. He is not acting in the course of his employment, if he is engaged in some pursuit of his own." If the servant or agent is acting outside the scope of his employment, the employer is not responsible. Lewis v. W. B. Lea Tobacco Co., N.C., 132 S.E.2d 877; Lindsey v. Leonard, 235 N.C. 100, 68 S.E.2d 852; Hinson v. Virginia-Carolina Chemical Corp., 230 N.C. 476, 53 S.E.2d 448; Salmon v. Pearce, 223 N.C. 587, 27 S.E.2d 647; Walker v. Manson, 222 N.C. 527, 23 S.E.2d 839; Smith v. Moore, 220 N.C. 165, 16 S.E.2d 701; McLamb v. Beasley, 218 N.C. 308, 11 S.E.2d 283; Puckett v. Dyer, 203 N.C. 684, 167 S.E. 43; United States v. Eleazer, 4 Cir., 177 F.2d 914; Manuel v. Cassada, 190 Va. 906, 59 S.E.2d 47, 18 A.L.R.2d 395; Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 92 N.E.2d 677, 18 A.L.R. 2d 1363; Olender v. Gottlieb et al., 344 Ill.App. 552, 101 N.E.2d 622; Voytas v. United States, 7 Cir., 256 F.2d 786; 57 C. J.S. Master and Servant, § 570 and 35 Am. Jur. s. 553 and 554.

The evidence viewed in the light most favorable to plaintiff is sufficient to establish these facts: Plaintiff, vice president of Carolina, is also an employee of J. P. Stevens Co., in charge of its upholstering business; he lives in New York; he gives 95% of his time to Stevens and 5% to Carolina; Carolina manufactures and sells yarn; Stevens manufactures and sells cloth; Mauney was secretary and treasurer of Carolina; Carolina owned a motor boat which it "used for the entertaining of customers, building of good will among the community, entertaining our employees and better relations with the employees of the plant, and employees and officers of the corporation"; the mill was on vacation during the week of 4 July 1960, "everybody, except the watchman, was on vacation"; plaintiff, Mauney, and a Mr. Crawford decided to take a vacation that week; they went to Crescent Beach and were *902 accompanied by their families. Plaintiff testified: "We rented a house there and all of us paid for it. The purpose of this trip so far as I was concerned was for relaxation and recreation. * * * On July 9, when the accident occurred, we were going up to Carolina Beach and up towards Wilmington, and up the Inland Waterway. We were not going to do anything up there, it was just a pleasure trip up the Inland Waterway. * * * As far as I was concerned, all three of us were taking the boat down there, Mr. Crawford, Mr. Mauney and myself, so we could all use it down there for our own personal pleasure. And on the day when this accident happened, we were all pleasure bent for our own personal pleasure. * * * Whether there was a boat and a vacation involved or not, I would go ahead and do my job to the best of my ability regardless of whether I had a vacation with Billy and regardless of whether I used the company boat, I would give them the benefit of my advice and help for whatever value it may be under any circumstances. So, it is true that actually using the boat and going on the vacation for recreation and relaxation had nothing to do with my attitude toward the corporation." Plaintiff, when asked if during the week he was on vacation he had any business discussions with Mauney, replied: "I answer I don't remember any specific conversations but usually when we got together* * *. I am sure we did." Defendant Mauney testified that Carolina needed a yarn salesman, and while they were on vacation he and plaintiff discussed the employment of a salesman recommended by plaintiff. There is nothing in the record to indicate when these conversations with respect to employment of a salesman or any other business matter took place. It appears unequivocally that the boat ride was for pleasurenot for business.

To hold that an employer is liable for acts done by his employees while on vacation merely because the employer provides them with a means of enjoyment, and casual discussions occur among the vacationers with respect to the employer's problems during the vacation period would stretch the doctrine of respondeat superior beyond its point of elasticity.

We have announced we will not expand the "family purpose doctrine" to include a motor boat provided by a parent for the enjoyment and relaxation of members of his family. Grindstaff v. Watts, supra. We perceive no sound reason for imposing liability on a corporation in similar circumstances.

The motion for nonsuit should have been allowed.

Reversed.