LINDSEY et al.
v.
LEONARD et al.
No. 744.
Supreme Court of North Carolina.
February 1, 1952.*854 J. Elmer Long, Graham, Thos. C. Carter, Burlington and Clarence Ross, Graham, for plaintiff-appellant.
Smith, Sapp, Moore & Smith, Greensboro, for defendant-appellee.
VALENTINE, Justice.
There is some evidence of negligence and of causative relation between the operation of the automobile by Leonard and the injury sustained by Lindsey, but the quantum of evidence on these points is not the pressing question here.
Plaintiff seeks to recover of the defendant, Burnette Home Supply Company, on the doctrine of respondeat superior for injuries sustained by her intestate in the accident. The Company denies all the essential allegations of the complaint. Plaintiff is, therefore, put to proof of every fact necessary to support her cause of action. This raises the question, is there evidence sufficient to warrant a submission of the case to the jury on the theory of liability under the doctrine of respondeat superior?
The record discloses that there was a contract between Leonard and the Company under the terms of which goods were consigned to Leonard by the Company to be sold on a commission basis. Leonard owned and used his own automobile. The Company furnished no transportation, paid for no expenses incident to the operation of his car, and had no control over him or his employees. There is no evidence tending to show that at the time of the injury to plaintiff's intestate Leonard was attempting to sell any goods for himself, the Company, or anybody else.
"The doctrine of respondeat superior applies only when the relation of master and servant, employer and employee, or principal and agent is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong, at the time and in respect to the very transaction out of which the injury arose. This is so well recognized that it may be said to be axiomatic. * * * In Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096, 1100, the Court, quoting from Durham v. Straus, 38 Pa.Super. 620, 621, said: `The plaintiff must not only show that the person in charge was defendant's servant, but the further fact that he was at the time engaged in the master's business.' * * * They settled the question in this jurisdiction. In every case, since decided, in which the question has been at issue, the Court has held that to charge the owner of a motor vehicle for the neglect or default of another there must be some evidence of the agency of the driver at the time and in respect to the transaction out of which the injury arose, and that proof of ownership alone is not sufficient to warrant or support an inference of such agency." Carter v. Thurston Motor Lines, 227 N.C. 193, 41 S.E.2d 586, 587.
Plaintiff based an exception upon the court's refusal to receive from the answer of Burnette Home Supply Company the following language: "that during the times alleged in the complaint there was existing between E. G. Leonard and Burnette Home Supply Company a contract whereby the said E. G. Leonard was to sell goods and merchandise for Burnette Home Supply Company on a commission basis." This language does not tend to prove, the existence of a relationship of master and servant or employer and employee. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137. It is of no probative value to the plaintiff and therefore irrelevant and properly excluded.
*855 Plaintiff also excepted to the court's failure to allow her to introduce from the answer of Leonard this language: `It is admitted that at this time the defendant was the representative of his co-defendant Burnette Home Supply Company. ` This was no more than an effort to prove agency by a declaration of an alleged agent and was upon that ground properly excluded. Hubbard v. Southern R. Co., 203 N.C. 675, 166 S.E. 802; Darlington v. Western Union Telegraph Co., 127 N.C. 448, 37 S.E. 479; Pangle v. Appalachian Hall, 190 N.C. 833, 131 S.E. 42; Howell v. Harris, 220 N.C. 198, 16 S.E.2d 829.
The plaintiff offered proof that the back seat of the Chevrolet automobile found at Leonard's home about dust dark on the day of the accident was filled with blankets and bedspreads and that Leonard there made the statement that he was selling the articles for the Company. This language was also properly excluded by the Court. In Tribble v. Swinson, 213 N.C. 550, 196 S.E. 820, 821, there was evidence that the car involved in the collision was practically filled with sandwiches and all kinds of cakes, which were the products of the defendant, Swinson Food Products Company, but there was, as in the instant case, no evidence that the driver of the automobile at the time of the collission was the agent or servant or acting within the scope of the employment of the defendant sought to be charged. In the Tribble case, the court said: `The evidence for plaintiff fails to make out a prima facie case on the essential facts necessary under the doctrine of respondent superior to hold the defendant Swinson responsible for the alleged negligent acts or tort of the defendant Vita.'
The essential facts necessary for the establishment of liability upon the doctrine here invoked have been stated in a long line of decisions, some of which are: Linville v. Nissen, supra, Grier v. Grier, 192 N.C. 760, 135 S.E. 852; Martin v. Greensboro-Fayetteville Bus Line, 197 N.C. 720, 150 S.E. 501; Jeffrey v. Osage Mfg. Co., 197 N.C. 724, 150 S.E. 503; Cole v. Asheville Funeral Home, 207 N.C. 271, 176 S.E. 553; Van Landingham v. Singer Sewing Machine Co., 207 N.C. 355, 177 S.E. 126; Shoemake v. Sinclair Refining Co., 208 N.C. 124, 179 S.E. 334; Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817; Liverman v. Cline, 212 N.C. 43, 192 S.E. 849.
Measuring the plaintiff's evidence by the standard laid down by this Court, plaintiff's evidence was insufficient to take the case to the jury. The judgment of the court below is affirmed.