Respondents base their right of recovery in this action solely on the acts of negligence, recklessness and willfulness of appellant's employee in the driving and operation of one of its tank trucks. In other words, all delicts relied upon for a recovery are those of the driver of the tank truck owned and used by the appellant in its business. While specification of negligence (g) in paragraph 4 of the complaint appears to allege negligence of the appellant in permitting the driving and operating of the said truck by its employee while he was in an intoxicated condition, this portion *Page 354 of specification (g) was not relied upon by the respondents, the only testimony in the case as to the condition of the driver of the truck at the time he was entrusted with the cargo of gasoline for its delivery being furnished by the appellant, and which testimony negatived negligence thereabout.
Upon the trial of the case in the Court below and at the conclusion of the testimony, appellant moved for a direction of verdict in its behalf, both as to actual and punitive damages, on fourteen stated grounds, all of which were encompassed in its first ground and reading: "The only reasonable inference to be drawn from the evidence is, that Walter Falconer, the driver of the truck, was not in the course of his master's business at the time that the truck overturned and caused the damage complained of in this case."
This motion was refused, and the jury returned the verdict in favor of respondents as follows: For the plaintiff, Equitable Fire Insurance Company of Charleston, South Carolina, $1,000.00 actual damages; for the plaintiff, R. A. Carroll, $5,000.00 actual and $1,500.00 punitive damages.
Following the rendition of this verdict, the appellant moved for judgment non obstante veredicto or, in the alternative, for a new trial. This motion was likewise refused, and hence this appeal.
The damages suffered by the respondents were occasioned by the burning of the residence of the respondent Carroll and the contents thereof on Saturday evening, February 27, 1943, when a truck of appellant, driven by one, Walter Falconer, turned over and set fire to Carroll's house, on which said Equitable Fire Insurance Company has issued a policy of fire insurance for $1,000.00, which following the fire it paid and took a subrogation receipt, and was accordingly joined as a party plaintiff, and is now one of the respondents. *Page 355
There is no dispute whatsoever that the loss of the respondents was caused by the negligence, willfulness and wantonness of Falconer, the driver of appellant's truck. The paramount issue in this case, and the only issue necessary to a decision thereof, is: Can any other reasonable inference be drawn from the testimony than that at the time when appellant's driver was guilty of the negligent, willful and wanton operation of appellant's truck, resulting in respondent's loss (and also resulting in the death of the driver and the destruction of the truck), appellant's employee had completely abandoned the business of appellant, while in the midst of performing it and before completing it, and gone off on a purely personal mission, which mission had not been accomplished?
There is no basis for dispute as to the pertinent facts of this case. These facts have been succinctly set forth in the appellant's brief, and disclose substantially the following:
Appellant is a corporation engaged in the transportation for hire, in tank trucks owned by it, of petroleum products belonging to certain of the major oil companies, for delivery to purchasers of the oil companies' products. Appellant does not own or acquire any of the products themselves, but simply transports them from the oil companies' terminal to such customers as the particular oil company may direct. For this service, of course, appellant receives a transportation charge from the oil company. In carrying on this business appellant has a number of these motor transport carriers, or tank trucks, for the operation of which in making such transportation, it employs truck drivers, whose sole duties are to take the tanker to the loading point, drive the truck to the point of destination, attend to the unloading of the tanker and return to appellant's terminal, obtaining the necessary signatures on the order and delivery blanks at the terminal, at the loading point and from the purchaser at the point of delivery. *Page 356
One of appellant's drivers employed for this purpose was Walter Falconer. He operated from the terminal of appellant on West Morehead Street at Charlotte, North Carolina. On February 27, 1943, Falconer had been working for appellant about twenty-one days. He was an experienced truck driver. After his employment by appellant, and prior to the fatal trip of February 27, 1943, Falconer had made six trips from Charlotte to Rock Hill, delivering petroleum products in his regular employment by appellant. On the trip on February 22nd (the last Falconer made to Rock Hill prior to February 27th) he was followed by another truck and driver of appellant, down Highway 21 as far as Pineville, where Falconer turned to the right on the highway to Rock Hill, while the following truck kept straight ahead on the road to Lancaster, its destination. While employed by appellant (February 8, 1943) Falconer had made one trip to York for the purpose of delivering a load of gasoline to the Standard Oil Company at York, that being the only place he had to go on that occasion. Falconer had lived, or at least made his temporary headquarters, at York during part of the winter of 1942 (if not longer) where he was connected with Wallace Brothers Circus, which had its winter quarters in York.
Falconer had been given explicit instructions that he was not to drink on the job. He had also been instructed to get his load at the tank farm, take it to the point of destination by the shortest, most direct and best route, deliver his load and return to appellant's terminal by the same route. In connection with the route to be followed by its driver, appellant's manager of the Charlotte, North Carolina, Terminal testified that the selection of the route was to an extent left to the discretion of its experienced drivers, and that they could take into consideration the traffic, the condition of the road, and the curves and hills to be encountered. Falconer *Page 357 had no other duties. He was paid by the week, straight time, and not on a mileage basis.
On Friday, February 26, 1943, appellant, through R.L. Bradley, its plant manager at the Charlotte terminal of appellant, received an order from Republic Oil Company of Atlanta for the delivery by appellant of 4,300 gallons of Housebrand gasoline from the Thrift tank farm to the Marshall Oil Company in Rock Hill. On Saturday afternoon, February 27, 1943, Mr. Bradley called Mr. Falconer into the office and instructed him to go to the Thrift terminal (which is about nine or ten miles out of Charlotte, in the opposite direction from Rock Hill) and load his tanker with the 4,300 gallons of gasoline. At that time Mr. Bradley gave Mr. Falconer the usual order form, in this case calling for 4,300 gallons of Housebrand gasoline to be delivered to Marshall Oil Company in Rock Hill, this being the entire capacity of the tank truck. Mr. Falconer at that time was sober and gave no evidence whatever of having had anything to drink. Falconer went to the Thrift terminal where he filled his tanker with the 4,300 gallons of gasoline and obtained the shipping order and bill of lading, calling for 4,300 gallons of gasoline, for delivery to Marshall Oil Company in Rock Hill. The tanks were sealed in a manner similar to the sealing of boxcars and Falconer signed the receipt for the gasoline, as described in this order form. The seals were intact and were not broken until inspected and approved by Mr. Kaylor, Manager of the Marshall Oil Company, when the truck arrived, driven by Mr. Falconer, at the Marshall Oil Company plant in Rock Hill for unloading.
No part of the load of the gasoline was to be delivered anywhere but at Marshall Oil Company and Falconer had nothing whatever to do but deliver this load of gasoline there and return to appellant's terminal in Charlotte. He had no reason, so far as the Company was concerned, for *Page 358 going to York or for being in or around McConnellsville, or for being on the road from Rock Hill to McConnellsville, or from McConnellsville to York or from York to Charlotte. There was no reason for him not to deliver the entire load to Marshall Oil Company and he had not completed his duties until he did deliver it all. There was nothing requiring him to bring any part of the load back to Charlotte.
Falconer arrived at Marshall Oil Company's plant in Rock Hill in the neighborhood of six o'clock in the afternoon, and, finding that Kaylor, the manager, was not there, he, Falconer, called Kaylor on the telephone, told him he had the load of gasoline and was in a hurry and to come unload it. Kaylor got in his automobile and came to the Marshall plant, where he found Falconer and the truck. When Kaylor arrived at the plant he asked Falconer what his hurry was and Falconer said "he had a date in York, and he wanted to go to York to see a girl." Kaylor then checked the gauges which showed that the 4,300 gallons were in the tanker, checked the seals and found them intact, broke them and helped Falconer hook up the hose that ran from the tank truck to the underground tanks of the Marshall Oil Company, and thereby started the process of unloading. Kaylor then went in the office to build up the fire, the process of unloading being one that would require from an hour to an hour and a quarter. Falconer followed Kaylor into the office and asked Kaylor if he ever drank. Kaylor told him that he didn't but if he did he wouldn't drink on the job. Kaylor asked him if he wasn't drinking, and Falconer said he was. Kaylor told him he ought not to drink on the truck but, if he were going to drink, to wait until he got back to Charlotte. Falconer replied that he had been driving a long time and knew more about driving than Kaylor did and then said that he must get outside and see about a dog he had in the truck. Falconer then went out on the platform, where he fell, got up and went to the truck where *Page 359 he got in the cab, took out of the pocket of the cab a pint bottle and took a drink. While the hose was still hooked up and the gasoline being unloaded, Kaylor went to a nearby store to get a soft drink and some crackers. Someone ran up and said that Falconer had pulled off. Falconer had gotten in the truck, cranked it up and, without turning off the flow of gasoline or unhooking the hose, driven off, stretching the hose as far as it would go, unraveling the steel wire of the hose and breaking the entire hose in two. He drove out of sight with gasoline spurting out of the place on the tanker where the hose had been attached. When he drove off there had been unloaded into Marshall Oil Company's tanks only about sixteen hundred gallons of the total of 4,300 which should have been unloaded. Kaylor called the police, but, while they went in search of the truck from Rock Hill to York over the regular main route between said places which is by Tirzah, they never did see the tanker. As Falconer pulled loose from the storage tank at Marshall Oil Company he was seen by a Negro passing by who tried ineffectively to stop him. Some distance away a Mr. Russell, who was going to his home on the McConnellsville road by way of West Main Street, saw the truck swerve out of a side street into Main Street in front of him, with the gas still pouring from the back of the truck. Russell blew his horn, and after going about two hundred yards, succeeded in stopping the truck and telling him about the gas running out. As a result the driver got out of the truck, went around to the back and cut off the gas. He was then headed in the direction of the McConnellsville road, which is in the opposite direction from the road to Charlotte. Russell did not see the truck any more, but a Negro, by the name of King Sinkler, who lives on the McConnellsville road, about three miles from McConnellsville (and about seven from York), saw a tanker truck pass, going toward York, with the right front door open and something dragging behind *Page 360 knocking up fire from the pavement. A little before dark the truck, driven by Falconer, and still dragging the broken and twisted end of the hose, coming into the south edge of the town of York from the direction of McConnellsville, and traveling at a high rate of speed, estimated to be fifty-five to sixty miles per hour, failed to make the turn from the Chester or McConnellsville road into Main Street of York, and turned over in the yard of the Carroll home, catching fire, burning Falconer to death and burning down Carroll's home and destroying or damaging other nearby property. A whiskey bottle, party full, was found near the truck.
The point of the accident is where the truck was entering the Town of York, at a point where Highway No. 321, from Chester and McConnellsville to York, and Highway No. 5, from Rock Hill to York, and Main Street of the Town of York (continuation of Highways No. 5 and 321 after converging) form a Y.
It is twenty-eight miles from Charlotte to Rock Hill by the paved road, United States Highway 21, through Pineville and Fort Mill. From Rock Hill to York by the main road, paved State Highway No. 5, it is fifteen miles. From Rock Hill to McConnellsville, by surface-treated highway No. 322, it is thirteen miles, and from McConnellsville to York, on paved Highway No. 321, it is ten miles. By way of certain dirt road short cuts it was testified that the distance between Rock Hill and York by way of the McConnellsville road could be cut down to sixteen and one-quarter miles. These short cuts are not regarded of any importance for the reason that there is no proof that Falconer either knew of or took these short cuts, and further it would appear from King Sinkler's testimony that Falconer did not take these short cuts because they would have brought Falconer out on the Chester Road (No. 321) between Sinkler's home and York, in which case he would not have passed Sinkler's home, as Sinkler testified, without contradiction, *Page 361 he did. From York to Charlotte by way of the paved road by Buster Boyd Bridge and the Shell plant (Highway No. 49) it is 32 miles.
Where one is found in the possession of the property of another, apparently using it in the business of such other, he is presumed to be the agent or servant of the owner and acting within the course of his employment. However, this is only a legal presumption, and is of course rebuttable. Upon the introduction of competent and credible evidence to the contrary, such presumption is dissipated, and standing alone and unaided does not present an issue of fact against such rebuttal evidence. For these fundamental principles, the citation of authority is unnecessary.
In the comparatively recent case of Holder v. Hayneset al., 193 S.C. 176, 7 S.E.2d 833, 838, the late Mr. Chief Justice Bonham, in writing the opinion of the Court, ably discussed the law governing this case, thus making it unnecessary for this Court to now do more than quote excerpts from said opinion. A complete summation of the apposite law is contained in the excerpts following:
"We need not look further than our own reports for authority in support of the rule as it was charged by the trial judge in the case now on appeal, to wit:
"`If you find from the evidence that the truck driver was negligent, willful or reckless upon the occasion alleged in the complaint but that upon said occasion he was not engaged in the doing of the truck owner's business, but was driving said truck on a trip of his own, the truck owner cannot be held liable for the results of said driver's negligence.
"`The master cannot be held liable for the negligent acts or omissions of his servants when not acting within the scope of his employment. The test as to the liability of the master is whether the servant was guilty of negligence in the doing of his master's work.' *Page 362
"We hold this to be a correct statement of the law of respondent superior.
"Nowhere has this rule of respondent superior been more clearly considered and applied than in the case of Knightv. Laurens Motor Car Company, 108 S.C. 179,93 S.E., 869, L.R.A., 1918-B, 151. The opinion of this court was delivered by Mr. Justice Gage and still stands as the law of this jurisdiction on the doctrine of respondent superior, and it stands as a monument to the power of analysis and aptness of application of the law to the facts of the learned justice who wrote it. * * *
"`The relationship between an owner of an automobile and one employed by him to drive it is the same as that between master and servant generally, and the liability of the owner for the negligence of the driver is to be determined by an application of the general rules of law governing the liability of a master for the negligence of his servant. It is the firmly settled rule that when a servant completely departs from his work to accomplish some purpose of his own not connected with his employment, the relation of master and servant is thereby temporarily suspended and the master is not liable for his acts during the period of such suspension.' * * *
"`With respect to departure from employment, without consent of owner, "the general rule is that a servant in charge of his master's automobile, who, though originally bound upon a mission for his master, completely forsakes his employment and goes upon an errand exclusively his own, and while so engaged commits a tort, does not thereby render the master answerable for such tort under the rule of respondent superior." 5 Blashfield's Cyc. of Automobile Law and Practice, Perm. Ed., § 3029.'"
Applying the foregoing established law in this State to the undisputed facts, we must reach the conclusion that there is no legal liability on the part of the appellant. *Page 363
By way of recapitulation, appellant's driver was sent from Thrift tank farm situate nine or ten miles out of Charlotte, N.C., in the opposite direction from Rock Hill, S.C. with a tank truck containing 4,300 gallons of gasoline, the full capacity of the tank, to be delivered to Marshall Oil Company in Rock Hill. (At the time the appellant's driver was entrusted with this mission there was no evidence that he was drinking.) When the driver reached his destination, he informed the manager or receiving agent of Marshall Oil Company that he was in a hurry to unload the cargo as he had a "date" in York, and wanted to go there to see a girl. He was then under the influence of some alcoholic beverage, and though warned that he should not drink on the job, proceeded to take at least one other drink, the size thereof being unknown. While in the act of delivering the gasoline to the consignee thereof, and when only between 1,500 and 1,600 gallons of the 4,300 gallons of gasoline had been pumped from the tank truck to the tanks of the consignee, and while the hose from the truck to the receiving tank was still connected, the driver drove the tank truck away from the place of business of Marshall Oil Company, breaking the hose pipe line, and proceeded out of the City of Rock Hill. Within a few blocks of the Marshall Oil Company's place of business the driver of the truck had his attention called to the fact that gasoline was pouring from the tank truck. He stopped and remedied this situation, which was notice to him that he had not completed the delivery, but of course such notice was not necessary. He then proceeded, not back towards Charlotte and the terminal station of appellant, but to York by way of McConnellsville, a much longer route than if he had followed the plainly charted route from Rock Hill to York, and for the purpose of keeping a "date." If the last stated fact be ignored and the question be then raised that Falconer may be assumed to have been engaged in returning the partially filled tank truck to the terminal of appellant near Charlotte, *Page 364 the admitted fact is, he was taking a route almost twice as far as the regular route. It is true that respondents contend that there were certain cut-off dirt roads he could have used which would have greatly diminished the distance, but the fact is that he did not use these roads.
Respondents further argue that the road on which Falconer was driving at the time of the accident, if pursued, would take him back to Charlotte. We think the attempted injected issue that Falconer had the option of routes in making his delivery and returning plays no part in the decision of this case. The controlling issue is the purpose he had in mind in traveling the particular route he was on at the time of the catastrophe.
Unless we disregard all of the testimony in the case, no other reasonable conclusion can be reached than that Falconer was in or near the Town of York for personal purposes, and that he was not then engaged in the course of business of the appellant. His sole duty on this occasion was to deliver 4,300 gallons of gasoline to Marshall Oil Company at Rock Hill, and then, and then only, to return the tank truck to the terminal of appellant on West Morehead Street, at Charlotte, North Carolina.
The only reasonable inference to be drawn from the testimony is that with utter indifference to the business and interest of the appellant the driver of its tank truck completely abandoned the business of appellant, while in the midst of performing it and before completing it, and went off on a purely personal mission, which mission had not been accomplished at the time of the accident.
Our every sympathy is with the respondents in this case, but until it be declared by legislative enactment that a tank truck loaded with gasoline or other like explosives traveling our highways shall in law be classed as a nuisance per se in *Page 365 the event damage results from the use of the highways by such truck, the owner of the truck cannot be held answerable for damage inflicted if the owner's servant is not engaged in the business of the owner at the time the damage is inflicted.
Under the facts of this case, the trial Judge should have granted appellant's motion for a direction of verdict in its behalf; and, failing in this, he should have granted appellant's motion for a direction of verdict non obstante veredicto. The case should therefore be remanded to the Circuit Court for entry of judgment in favor of the appellant.
Mr. ASSOCIATE JUSTICE TAYLOR concurs.