Concurring in part, and dissenting in part.
I agree with the statement in the majority opinion to the effect that plaintiff has sufficient evidence to carry the case to the jury against defendant Dempsey, and that the granting of his motion for judgment of nonsuit was reversible error.
I do not agree with the statement in the majority opinion that the granting of the motion for judgment of nonsuit as to the defendant Simons was proper. As I understand the majority opinion, such a conclusion is based on the statement therein that “there is, therefore, no evidence as against the defendant Simons of any negligence by the driver of his truck” because Dempsey’s extrajudicial statement is incompetent against Simons.
Anderson v. Office Supplies, 234 N.C. 142, 66 S.E. 2d 677, was a civil action for damages resulting from a truck-motorcycle collision. It was admitted that the individual defendant was an employee of the corporate defendant and was about his master’s business at the time of the collision. Plaintiff was nonsuited in the trial court, and on appeal the judgment entered was reversed. The Court in its opinion, written by Barnhill, J., said:
“That the declarations of Dockery made immediately after the collision were admitted only as against him does not affect the result as to the corporate defendant. It is not alleged that the corporate defendant committed any act of negligence. As to it, plaintiff relies on the doctrine of respondeat superior. If, upon consideration of all the evidence, the jury shall find that plaintiff suffered injuries as a proximate result of the negligence of Dockery, then Dockery’s negligence will be imputed to the corporate defendant, thus imposing liability upon it for the injuries sustained.”
*750Not infrequently appellate courts call a statement of law in a prior decision which they find troublesome in deciding a case obiter dictum. Conceding arguendo ■ — • but not admitting — that the above quoted statement is obiter dictum, in my opinion, it is sound and correct law.
Grayson v. Williams, 256 F. 2d 61, involved a factual situation identical with the instant case. It was an action by Harold E. Williams against Murray Grayson and Southern Freightways, Inc., for damages arising out of a collision of a truck driven by Williams and one driven by Grayson as an employee of Southern Freightways, Inc. The jury returned a verdict for plaintiff against both defendants upon which judgment was entered. The only negligence charged against Southern Freightways, Inc., was that imputed by law from the negligent act, if any, of its employee, while engaged within the scope of his employment. Defendant corporation challenged the judgment, inter alia, on the ground that the court erred in allowing in evidence against it admissions of Grayson made by Grayson several hours later in a hospital. The Court based its affirmance of the judgment on two grounds, one of which is identical with the statement of law quoted above from our case of Anderson v. Office Supplies, supra. The Court said:
“In order to find Southern Freightways, Inc. liable because of Grayson’s acts, it was necessary to establish two facts; (1) that Grayson was acting within the scope of his employment; and (2) that he was guilty of actionable negligence. The first fact was admitted. Grayson’s admissions against his interest were properly admitted to establish his negligence. These admissions constituted evidence from which the jury could find together with other facts that he was liable for the accident. Any facts properly admitted to establish his liability were sufficient, without more, to impose liability upon his employer.
“Let us assume that the court had instructed the jury that it could consider Grayson’s declarations only in determining his negligence and together with a general verdict had submitted these three special questions to the jury.
“1. Was plaintiff guilty of contributory negligence?
“2. Was Grayson guilty of negligence?
“3. Was his negligence the proximate cause of the accident? If the jury had answered 'no’ to the first question and 'yes’ to questions 2 and 3, and then had returned a general verdict against Grayson and a general verdict in favor of Southern *751Freightways, Inc., would not the court have been required to sustain a motion for judgment against Southern Freightways, Inc., notwithstanding the general verdict in its favor? To hold otherwise would be to make a mockery of the law, because it would mean that the agent had been found guilty of actionable negligence, upon competent evidence, while acting within’ the scope of his employment, yet his principal had escaped.”
I do not agree with the further statement in this case that Grayson’s admissions were admissible against his employer. Such a statement is at variance with numbers of our decisions, Stansbury, North Carolina Evidence, § 169, and with the decisive weight of authority in other jurisdictions, 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 968; 31A C.J.S., Evidence, §§ 345, 346.
It is hornbook law in this jurisdiction and in this country that an employer is liable to a third person for any injury to either person or property which proximately results from tortious conduct of his employee acting within the scope of his authority and in furtherance of his employer’s business. Although the employer is not directly negligent, the tortious conduct of his employee acting within the scope of his authority and in furtherance of his employer’s business is imputed to his employer upon the doctrine of respondeat superior and imposes liability upon him. Jackson v. Telegraph Co., 139 N.C. 347, 51 S.E. 1015, 70 L.R.A. 738; Bryant v. Lumber Co., 174 N.C. 360, 93 S.E. 926, L.R.A. 1918A 938; West v. Woolworth Co., 215 N.C. 211, 1 S.E. 2d 546; Jackson v. Mauney, 260 N.C. 388, 132 S.E. 2d 899; Porter v. Grennan Bakeries, 219 Minn. 14, 16 N.W. 2d 906; 35 Am. Jur., Master and Servant, § 552; 57 C.J.S., Master and Servant, § 570.
This is stated in 35 Am. Jur., Master and Servant, § 559: “The courts are generally agreed that an employer may be held accountable for the wrongful act of his employee committed while acting in his employer’s business and within the scope of his employment, although he had no knowledge thereof, or had disapproved it, or even expressly forbidden it.”
In West v. Woolworth Co., supra, the Court said:
“While the actual authority of the employee is usually material in determining the scope of his employment it is not determinative of the liability of the principal. Employers seldom, if ever, instruct or directly authorize their employees to wrongfully invade the personal or property rights of others. We may assume that torts committed by employees are committed con*752trary to the desire and purpose of the employer. When, however, the employee is undertaking to do that which he was employed to do and, in so doing, adopts a method which constitutes a tort and inflicts injury on another it is the fact that he was about his master’s business which imposes liability. That he adopted a wrongful or unauthorized method, or a method expressly prohibited, does not excuse the employer from liability.”
In Porter v. Grennan Bakeries, supra, the Court said:
“Under the doctrine of respondeat superior, according to the generally accepted view, vicarious liability to third persons is imposed upon the master for his servant’s torts, not because the master is at fault, or because he authorized the particular act, or because the servant represents him, but because the servant is conducting the master’s business, and because the social interest in the general security is best maintained by holding those who conduct enterprises in which others are employed to an absolute liability for what their servants do in the course of the enterprise. Loucks v. R. J. Reynolds Tobacco Co., 188 Minn. 182, 246 N.W. 893; Eliason v. Western Coal & Coke Co., 162 Minn. 213, 202 N.W. 485; Penas v. Chicago, M. & St. P. R. Co., 112 Minn. 203, 127 N.W. 926, 30 L.R.A., N.S., 627, 140 Am. St. Rep. 470; New York Cent. R. Co. v. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L.R.A. 1917D, 1, Ann. Cas. 1917D, 629; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 53 L. Ed. 480; Farwell v. Boston & W. R. Corp., 4 Metc. 49, 45 Mass. 49, 38 Am. Dec. 339 (per Shaw, Chief Justice); Pound, Law and Morals, pp. 76, 77. Where the doctrine of respondeat superior is relied on as a basis for recovery by a third person, the tortious act of the servant committed in the scope of his employment, and not the master’s fault or the absence of it in hiring or retaining the servant, is the basis of liability. The master is held liable for the servant’s tort. Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 74 N.W. 166, 70 Am. St. Rep. 341; Carlson v. Connecticut Co., 94 Conn. 131, 108 A. 531, 8 A.L.R. 569, and annotation; 35 Am. Jur., Master and Servant, §§ 548, 597.”
Plaintiff has no evidence of any wrongdoing on the part of Simons other than the wrongdoing of his employee Dempsey. Simons is liable only if Dempsey, his employee and acting within the scope of his employment, was guilty of conduct which would impose liability upon Simons. If Dempsey was guilty of such conduct, then by operation of law alone, and without more, liability is imposed upon *753Simons. The liability of Dempsey depends upon facts; that of Simons depends upon the applicable law when the facts are once established. The rule is well stated in 35 Am. Jur., Master and Servant, § 543:
“By legal intendment, the act of the employee becomes the act of the employer, the individuality of the employee being identified with that of the employer. The latter is deemed to be constructively present; the act of the employee is his act, and he becomes accountable as for his own proper act or omission. The law imputes to the master the act of the servant, and if the act is negligent or wrongful, proximately resulting in injury to a third person, the negligence or wrongful conduct is the negligence or wrongful conduct of the master for which he is liable.
“The doctrine of respondeat superior under which liability is imposed upon the master for the acts of his servants committed in the course or within the scope of their employment has its foundation or origin in consideration of public policy, convenience, and justice. Substantial justice is best served by making a master responsible for the injuries caused by his servant acting in the master’s service. The rule has been greatly developed and extended out of necessities of changing social and economic conditions. The rule itself and its development is an example of the process by which the judgment of society as to what is necessary to public welfare is from time to time expressed in juristic forms. It may be thought to be a hard rule to fix liability on the employer, even when the employee has passed out of sight and control, but it rests upon a public policy too firmly settled to be questioned. It is elemental that every person in the management of his affairs shall so conduct them as not to cause an injury to another, and if he undertakes to manage his affairs through others, he remains bound so to manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority. Inasmuch as he has made it possible for his employee to inflict the injury, it is only just that he should be held accountable. ‘The maxim of respondeat superior,’ said Lord Chief Justice Best in Hall v. Smith, ‘is bottomed on this principle: that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it.’ ”
*754In a civil action to recover damages for wrongful death against A, an alleged employee, and B, his alleged employer, because of the alleged employee’s tortious acts done in the scope of his authority and in furtherance of his alleged employer’s business, proximately resulting in plaintiff’s intestate’s death, the usual issues submitted to the jury are as follows:
1. Was the plaintiff’s intestate killed by the negligence of A, as alleged in the complaint?
2. If so, was A at the time an employee of B and acting within the scope of his authority and in furtherance of his master’s business?
If the jury should answer both issues yes, then, in the absence of any contributory negligence on the part of plaintiff’s intestate, plaintiff would be entitled to recover damages jointly and separately from A and B, because as a matter of law the negligence of A under such findings by a jury is imputed to B and imposes liability on him on the doctrine of respondeat superior. The mere form of the customary issues in such cases is framed upon the principle that vicarious liability to plaintiff is imposed upon the employer for his employee’s torts, not because the employer is at fault, but because the employee is conducting his employer’s business. In other words, the fact that the employee was about his employer’s business is what imposes liability on the employer.
The majority opinion holds that plaintiff has sufficient evidence to carry his case to the jury against Dempsey, based upon Dempsey’s extrajudicial statement. With that holding I agree.
Henry L. Bazemore, a. witness for plaintiff, testified to this effect, except when quoted: He went to the scene of the collision between a Dodge station wagon and a Ford truck on Highway #13, and saw Dr. Branch sitting behind the steering wheel of the Dodge station wagon, and a man was holding his head up. At the scene he saw defendant Dempsey, who had cuts and blood on him. He said at the scene in the hearing of Dempsey, “this man [Dr. Branch] is dead.” Osborne Highsmith, a State patrolman and a witness for plaintiff, testified in effect: He went to the scene of the collision, and on arrival saw there defendant Dempsey and Dr. Branch sitting under the steering wheel of a Dodge station wagon motionless with his hands down to his side. Defendant Simons in paragraph five of his answer admits “that this defendant is a resident of Ahoskie, Hertford County, North Carolina, and that on the 1 day of February, 1963, he owned a 1956 Ford two-ton truck bearing 1963 North Carolina License No. 5349-RC,” and in paragraph eleven of his answer he alleges that “he is advised that there was a collision on U. S. Highway #13 near Ahoskie, North Carolina, on February 1, 1963, involving a *755truck of this defendant and another motor vehicle.” Plaintiff introduced in evidence a certified copy of the registration of a 1956 Ford two-ton truck bearing 1963 North Carolina license No. 5349-RC showing that defendant Simons was the registered owner of this Ford truck. This evidence and the admissions in defendant Simons’ answer above set forth bring into play the provisions of G.S. 20-71.1, which provide.
“(a) In all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose.
“ (b) Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action, be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner’s benefit, and within the course and scope of his employment.”
Evidence offered by plaintiff sufficient to carry his case to the jury against Dempsey, even if all such evidence is an extrajudicial statement by Dempsey incompetent as to Simons, taken in connection with Dempsey’s presence at the scene of the collision fatal to Dr. Branch shortly after it occurred, with the presence of Simons’ wrecked truck at the scene, and with the admissions in defendant Simon’s answer above quoted, and the evidence of plaintiff that Simons was the registered owner of the Ford truck Dempsey was driving at the time of the fatal collision, which bring into play the provisions of G.S. 20-71.1, are sufficient, in my opinion, to carry plaintiff’s case to the jury against Simons, in that they make out a prima facie case that the negligence of Dempsey, an employee of Simons and operating the Ford truck for Simons’ benefit and within the course and scope of his employment, proximately resulting in Dr. Branch’s death, is imputed to Simons, his employer, and imposes vicarious liability on Simons, not because Simons is at fault, but because his employee Dempsey at the time was about his employer’s business, on the principle of respondeat superior. To hold otherwise would be to repudiate the doctrine of respondeat superior and to *756ignore the provisions of G.S. 20-71.1, because it would mean that there is sufficient evidence to carry the case to the jury against Simons’ agent Dempsey of actionable negligence, while operating a truck of Simons and acting within the scope of his employment and in furtherance of his employer’s business, yet there is insufficient evidence to carry the case to the jury against his employer Simons, and Simons the employer escapes liability. I vote to reverse the judgment of nonsuit of plaintiff’s case against Simons.
DeNNY, C.J., joins in this concurring and dissenting opinion.