Nola H. ALTMAN
v.
Ella Mae SANDERS and Robert Sanders.
No. 609.
Supreme Court of North Carolina.
May 4, 1966.*23 Wilson & Bowen, Dunn, for plaintiff appellant.
Young, Moore & Henderson, by J. Allen Adams, Raleigh, for defendant appellees.
LAKE, Justice.
There has been no determination of the merits of this action. Thus, it has not been determined that Ella Mae Sanders was negligent in any respect, or that the plaintiff sustained an injury, or that, if she did, it was proximately caused by negligence of Ella Mae Sanders, or that the plaintiff was or was not contributorily negligent.
The judgment now before us for review dismisses the plaintiff's action against both defendants on the ground that even if Ella Mae Sanders was negligent in the operation of the automobile, if such negligence was the proximate cause of injuries to the plaintiff, if the plaintiff did not by her own negligence contribute to her injuries, and if Ella Mae Sanders was operating the automobile within the limits of the family purpose for which her husband, its owner, maintained it, the plaintiff may not recover either from Ella Mae Sanders or from her husband, Robert Sanders, by reason of the North Carolina Workmen's Compensation Act.
The pertinent provision of that Act is found in G.S. § 97-9, which reads as follows:
"Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for personal injury or death by accident to the extent and in the manner herein specified."
Where, as is true of the Watson Company in the present case, the employer maintains insurance coverage, as specified *24 in the above statute, an employee, who is subject to the provisions of the Workmen's Compensation Act and who sustains an injury, arising out of and in the course of his or her own employment, cannot maintain an action at common law against another employee whose negligence, while conducting the employer's business, was the proximate course of the injury. Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6. See also Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610.
In Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106, this Court said that the phrase, "those conducting his [the employer's] business," which appears in the above statute, should be given a liberal construction. One must be deemed to be conducting his employer's business, within the meaning of this statute, whenever he, himself, is acting within the course of his employment, as that term is used in the Workmen's Compensation Act. It is not necessary, in order to bring an employee within the protection of this statute, to show that his act was such as would have been imputed to the employer at common law.
In Davis v. Devil Dog Manufacturing Co., 249 N.C. 543, 107 S.E.2d 102, this Court held that when an employer maintains upon his premises a parking lot for the use of his employees, an employee, who arrives upon the lot at a reasonable interval prior to the time when he is to report for work and who is injured by an accident upon such lot while proceeding to the plant to report for duty, is entitled to compensation under the provisions of the Workmen's Compensation Act. In Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432, this Court likewise held that an employee, injured by an accident upon such parking lot while preparing to leave the premises within a reasonable time after the termination of his day's work, is entitled to compensation under the Act.
The plaintiff, having parked her car in the parking lot, maintained by her employer (Watson Company) upon its premises, approximately ten minutes prior to the time when she was required to be at her post of duty, was injured by an accident while walking to the plant to report for work, assuming she was injured as she alleges. Assuming these to be the facts, the plaintiff would be entitled to compensation under the Workmen's Compensation Act. That is, the plaintiff was in the course of her employment as that term is used in the Act when she was injured. It is equally true, however, that had Ella Mae Sanders sustained an injury in the same collision she also would have been entitled to compensation therefor under the Act. That is, Ella Mae Sanders was then in the course of her employment as that term is used in the Act. Consequently, even if Ella Mae Sanders was negligent in the operation of the automobile and such negligence by her was the proximate cause of injuries sustained by the plaintiff, the plaintiff may not maintain an action against Ella Mae Sanders on account of those injuries. Thus, the dismissal of the action against Ella Mae Sanders was proper.
It does not follow, however, that the plaintiff may not maintain an action against Robert Sanders. It is stipulated that he was the owner of the automobile, that it was a family purpose car and was being operated by Ella Mae Sanders, his wife, with his permission. In Lyon v. Lyon, 205 N.C. 326, 171 S.E. 356, Connor, J., speaking for the Court, said:
"It is well settled as the law in this state that, where a husband owns an automobile, which he keeps and maintains for use by his wife for her pleasure, and the wife, while driving the automobile, by her negligence causes injuries to a third person, such person may recover of the husband damages for his injuries. * * * The wife, as the driver of the automobile, is the representative of the husband, and although she is driving the automobile for her pleasure, is engaged in his business, while driving the automobile for the purposes of its ownership. The relationship between the husband and *25 the wife, with respect to the automobile, is analogous to that of master and servant, or principal and agent, and not that of bailor and bailee."
In Lynn v. Clark, 252 N.C. 289, 113 S.E.2d 427, Denny, J., later C. J., speaking for the Court, said:
"In our opinion, the mere allegation that a car owned by a defendant is a family purpose car is an insufficient allegation upon which to recover under the family purpose doctrine.
"Ordinarily, a cause of action based solely on the family purpose doctrine is stated by allegations to the effect that at the time of the accident the operator was a member of his family or household and was living at home with the defendant; that the automobile involved in the accident was a family car and was owned, provided, and maintained for the general use, pleasure, and convenience of the family, and was being so used by a member of the family at the time of the accident with the consent, knowledge, and approval of the owner of the car. [Citations omitted.] Allegations which, if proven, are sufficient to invoke the family purpose doctrine, are sufficient to establish agency."
In the present case, the complaint is sufficient to meet the test so laid down in the Lynn case, but the stipulation, considered alone, is not so extensive. It merely states that Robert Sanders was the owner of the automobile, which was registered in his name, and that it was a "family purpose car," and was being operated by Ella Mae Sanders with the permission of Robert Sanders at the time referred to in the complaint. This stipulation should be read, however, in the light of the pleadings. When so read, it is sufficient to establish the agency relation between the defendants upon the basis of the family purpose doctrine.
One may be the servant or agent of another and acting within the course of his employment so as to make such employer or principal liable, under the doctrine of respondeat superior, for injuries proximately caused by his negligence, and at the same time be also in the course of his employment by another employer within the meaning of the Workmen's Compensation Act. See Leggette v. J. D. McCotter, Inc., 265 N.C. 617, 144 S.E.2d 849.
By reason of the fact that Ella Mae Sanders was within the course of her employment by the Watson Company at the time of the alleged injury to the plaintiff, G.S. § 97-9 throws about her a cloak of immunity from suit on account of such injury even if it was caused by her negligence in the operation of the automobile. The statute does not, however, extend this immunity to her husband, if it be established that she was driving the automobile as his agent and within the course of such employment.
It is well settled that when, as here, an employer and his employee are sued upon the ground that negligence or other misconduct of the employee was a proximate cause of injury to the plaintiff and that the employer is liable under the doctrine of respondeat superior, a judgment in favor of the employee upon the ground that the employee was not at fault compels a judgment in favor of the employer also. Morrow v. Southern R. R., 213 N.C. 127, 195 S.E. 383; Whitehurst v. Elks, 212 N.C. 97, 192 S.E. 850; Nichols v. Champion Fibre Co., 190 N.C. 1, 128 S.E. 471.
The same result is reached when the judgment in favor of the employee has been rendered in a prior action between such employee and the third party who thereafter institutes an action against the employer. Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570. This is an exception to the general rule that a judgment *26 ordinarily binds only the parties and those in privity with them. Queen City Coach Co. v. Burrell, 241 N.C. 432, 85 S.E.2d 688. In Pinnix v. Griffin, supra, it is said, "The exception is only an exemplification of the broad rule by which one whose liability is wholly derivative may claim the benefit of a judgment in favor of him from whom his liability is derived."
In Stone v. Carolina Coach Co., 238 N.C. 662, 78 S.E.2d 605, there was a collision between the plaintiff's truck and the defendant's bus, resulting in injuries to the plaintiff and to the bus driver. The bus driver sued the plaintiff; a settlement was reached and a consent judgment was entered under which a payment was made to the bus driver. In the plaintiff's subsequent suit against the Coach Company recovery was denied, this Court saying:
"This defendant was the employer of Parker [the bus driver], who was about his master's business at the time of the collision. It is liable to plaintiff, if at all, under the doctrine of respondeat superior. A judgment which constitutes a release of Parker from further liability to plaintiff likewise releases this defendant, for it is legally liable only for damages proximately resulting from his negligence."
In Pinnix v. Griffin, supra, the third party sued both the employer and the employee in the same action. She recovered a judgment for $1,000 from the employee and a judgment of nonsuit was entered as to the employer. She appealed from the nonsuit only and it was reversed. On the second trial, she obtained a verdict against the employer for $5,000, but it was held that she could recover from the employer only $1,000, the former judgment against the employee, from which she did not appeal, fixing the amount for which the employer was liable. This Court said, "The plaintiff can have but one satisfactionpayment of the damages caused by the wrongful act of Griffin [the employee]."
When an employer is sued for damages on account of the negligence of his employee and there is no allegation of negligence, or other fault, on the part of the employer himself, the employer's liability, if any, rests upon the doctrine that the act of the employee, in the course of his employment, is the act of the employer, just as if the employer were personally present and performing the act. Qui facit per alium facit per se. Consequently, a judgment that the employee's act was not negligent, or otherwise wrongful, destroys the basis upon which the plaintiff must proceed in order to recover against the employer. The employer is not liable because there has been no wrongful act or omission by him, acting through his employee.
A different situation is presented by the present case. Here, the judgment in favor of Ella Mae Sanders, the employee or agent of her husband, does not rest upon the ground that she was not negligent. It rests upon the ground that the statute makes her personally immune from suit on account of her negligence because, at the time of her negligent act or omission, she was in the course of her employment by the Watson Company. This statutory immunity has no connection with her employment by her husband to drive his automobile. He was acting, through her, in the driving of the automobile, if she was operating it with his consent and pursuant to the family purpose for which he maintained the automobile. It is as if he were personally present driving the vehicle in the same manner. Obviously, if he had brought his wife to her work, and had driven as she is alleged to have done, the Workmen's Compensation Act would not have made him immune to suit by the plaintiff for he was not conducting the Watson Company's business. He is equally subject to suit when, by the fiction of the law, he so drives by and through his wife as his agent. Though she, his agent or employee, is immune to suit by the plaintiff, he is not. Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676; Wright v. Wright, 229 N.C. 503, 50 *27 S.E.2d 540. It was, therefore, error to dismiss the action as against Robert Sanders.
Affirmed as to Ella Mae Sanders.
Reversed as to Robert Sanders.
MOORE, J., not sitting.