Robert L. THOMAS, Administrator of the Estate of Joyce Thomas, Deceased
v.
Ernest Edward POOLE, Jr., Dwight M. Dunlap, and Guy R. Rankin, Individually and Guy R. Rankin Security Service Corporation, Trading as Vanguard Security Service.
No. 7914SC451.
Court of Appeals of North Carolina.
February 19, 1980.*856 Hedrick, Parham, Helms, Kellam & Feerick by Hatcher B. Kincheloe, Charlotte, and Kenneth B. Spaulding, Durham, for plaintiff-appellant.
Spears, Barnes, Baker & Hoof by Alexander H. Barnes, Durham, for defendants-appellees.
CLARK, Judge.
We elect to consider initially whether the trial court erred in ruling that plaintiff had no claim against the defendant corporation upon the doctrine of respondeat superior.
Under the doctrine of respondeat superior the master, or employer, is liable for the negligent acts or omissions of his servant, or employee, while acting as such and within the "scope of his employment." Jackson v. Mauney, 260 N.C. 388, 132 S.E.2d 899 (1963); Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190 (1951); Gillis v. A & P Tea Co., 223 N.C. 470, 27 S.E.2d 283 (1943); 57 C.J.S. Master and Servant § 571 (1948); 8 Strong's N.C. Index 3d Master and Servant §§ 32 to 36 (1977). Unless there is no material issue of fact as to whether the employee was acting within the scope of his employment, N.C.Gen.Stat. § 1A-1, Rule 56(c); W. Shuford, N.C. Civil Practice and Procedure § 56-7 (1975), the question will be submitted to the jury. See also, 8 Strong's N.C. Index 3d Master and Servant § 34 (1977), and the authorities cited therein.
The circumstances of the fatal shooting in the case sub judice are particularly significant to the question of whether defendant Poole was acting within the scope of his employment and thereby made the defendant corporation liable by application of the doctrine of respondeat superior. Since it appears that there were no eyewitnesses to the shooting other than defendant Poole, these circumstances appear in the deposition of Poole and in the testimony of Poole and Officer M. W. Mitchell, who investigated the homicide and arrived at the scene about 11:00 p. m. and talked with Poole, as transcribed at the criminal trial of defendant Poole on the manslaughter charge.
In his deposition Poole admitted that he told Officer Mitchell that he pulled the trigger, but at that time he was upset and did not understand what was happening. "I did not pull the trigger," stated Poole. "I closed the cylinder with my right hand as I was lifting the gun to put it in the holster." It was "at that point the gun went off." "At the time of this incident," explained Poole, "I thought the gun was fully unloaded."
In contrast, at the manslaughter trial Officer Mitchell testified that Poole made a statement about 12:50 a. m. and said: "I just pulled the trigger on the pistol and it went off. . . . I didn't know it was loaded . . .."
*857 In the trial on the manslaughter charge defendant Poole testified that he did tell Officer Mitchell that he "just pulled the trigger and it went off." He added that he was nervous and the statement was made before he consulted legal counsel.
The foregoing transcribed testimony, offered by plaintiff in support of the motion for summary judgment established that defendant did not willfully and maliciously shoot the telephone operator, Joyce Thomas. But his version of the circumstances as related to Officer Mitchell and his version as related in his deposition and in his criminal trial are conflicting.
From Poole's statement to Office Mitchell it may be reasonably inferred that after Joyce Thomas grabbed his sleeve, Poole engaged in "horseplay" in that, thinking the revolver was empty, he pointed the gun at her and intentionally pulled the trigger. But from his deposition and trial testimony it may also be reasonably inferred that he negligently failed to empty the gun and that it accidentally discharged when he was attempting to put the gun in his holster. These two versions raise a material issue of fact, and, if the evidence at trial is substantially the same as appears in the record before us, the issue must be determined by a jury.
If the jury should find that defendant Poole engaged in "horseplay" in that, thinking the gun was empty, he pointed the gun at the telephone operator and intentionally pulled the trigger after she grabbed and held his sleeve, he deviated from the scope of his employment and engaged in a personal mission of his own, then, as a matter of law, the defendant corporation would not be liable to plaintiff under the doctrine of respondeat superior. See Norman v. Porter, 197 N.C. 222, 148 S.E. 41 (1929), where it was held that the employee-son of the store owner deviated from the scope of his employment when he threw a cartridge in the stove and it exploded, hitting plaintiff in the eye. For other "horseplay" cases involving the use of a gun where it was held that the employee was operating outside the scope of his employment, see, e. g., Olson v. Staggs-Bilt Homes, Inc., 23 Ariz. App. 574, 534 P.2d 1073 (1975); Scrivner v. Boise Payette Lumber Company, 46 Idaho 334, 268 P. 19 (1928); American Ry. Express Co. v. Tait, 211 Ala. 348, 100 So. 328 (1924); American Ry. Express Co. v. Davis, 152 Ark. 250, 238 S.W. 50 (1922); Smith v. Peach, 200 Mass. 504, 86 N.E. 908 (1909); Burns v. Texas Midland R. R., 167 S.W. 264 (Tex.Civ.App.1914), Cf., DuPree v. Babcock, 100 Ga.App. 767, 112 S.E.2d 415 (1959).
On the other hand, if the jury should find that defendant Poole was not engaged in horseplay, but negligently failed to remove all cartridges from the gun and, thinking it was empty, negligently handled the gun causing it to discharge and strike Joyce Thomas, then the additional question of whether defendant Poole was acting within the course and scope of his employment would be for the jury to determine under proper instructions from the court. 8 Strong's N.C. Index 3d Master and Servant § 34 (1977).
Since the defendant corporation has failed to establish that there was no genuine issue of a material fact relating to the doctrine of respondeat superior, the ruling of the trial court allowing summary judgment for the defendant corporation on this question was error.
We affirm so much of the judgment of the trial court allowing summary judgment for individual defendants Guy R. Rankin and Dwight M. Dunlap. The supporting material fails to show that Rankin was acting in his individual capacity; consequently, defendant Rankin is insulated by the corporate entity through which he was doing business. The material also fails to show actionable negligence on the part of Dunlap. We find no duty on the part of Dunlap to warn of the extra bullet when he transferred the gun to Poole who had full knowledge that the gun was loaded. Even if Dunlap were negligent in failing to warn of the extra bullet, his negligence would not be actionable because it was not foreseeable that defendant Poole would either engage in horseplay or fail to check all the cylinders *858 while unloading the gun. See also, Smith v. Peach, supra.
Reversed in part; Affirmed in part.
ARNOLD and ERWIN, JJ., concur.