Robinson v. Sears, Roebuck & Co.

Stacy, C. J.

When the plaintiff went out of his way to reprimand the individual defendant for his manner of speech or his intemperate language about the girls in the store, he fell under the proverbial comparison of “He that passeth by, and meddleth with strife belonging not to him, is, like one that taketh a dog by the ears.” Prov. 26:17. The plaintiff was under no legal duty to reprove the defendant Lewis, however strongly he may have been inclined to do so. His business with the corporate defendant had ended, and he concedes “the fight was over a personal matter.” This brings the case within the principle of Snow v. DeButts, 212 N. C., 120, 193 S. E., 224, where the motion to nonsuit was sustained, and distinguishes it from Munick v. Durham, 181 N. C., 188, 106 S. E., 665, cited and relied upon by plaintiff. Cf. Long v. Eagle Store Co., 214 N. C., 146, 198 S. E., 573; Robinson v. McAlhaney, ibid., 180, 198 S. E., 647; Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446.

The authorities are to the effect that where an assault by an employee is purely personal, having no connection with the employer’s business but a merely accidental or incidental one, the doctrine of respondeat superior is inapplicable and cannot be successfully invoked to support a recovery against the employer. Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817; Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137; Dover v. Mfg. Co., ibid., 324, 72 S. E., 1067; Annotations: 40 A. L. R., 1212; 114 A. L. R., 1033.

“Where one person is sought to be charged with the negligence or wrongdoing of another, the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person so sought to be charged, at the time of and in respect to the very transaction out of which the injury arose. The fact that the former was at the time in the general employment and pay of the latter, does not necessarily make the latter chargeable.” Wyllie v. Palmer, 137 N. Y., 248.

The foregoing was quoted with approval in Bright v. Tel. Co., 213 N. C., 208, 195 S. E., 391; Liverman v. Cline, 212 N. C., 43, 192 S. E., 489; Linville v. Nissen, supra; Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 754, and is universally held for law. Doran v. Thomsen, 76 N. J. L., 754. See Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820; Cole v. Funeral Home, 207 N. C., 271, 176 S. E., 553; Martin v. Bus Line, 197 N. C., 720, 150 S. E., 501; Wilkie v. Stancil, 196 N. C., 794, 147 S. E., 296; Grier v. Grier, 192 N. C., 760, 135 S. E., 852.

It results that the motion to nonsuit was properly sustained.

Affirmed.