#### MARY W. WILKIE v. H. B. STANCIL and GILMERS, Incorporated.

(Filed 27 March, 1929.)

Master and Servant — Master’s Liability for Injuries to Third Persons— Scope of Employment.

The liability of the master in damages for the negligent acts of the servant extends only to such acts that occur within the scope of the servant’s duties or in furtherance thereof, and where the evidence tends only to show that the injury in suit was caused by the servant in going in his automobile to his master’s store on a holiday to light the lights therein, without further duty to perform on that occasion, a motion for judgment as of nonsuit thereon is properly granted, and the servant’s intention of performing an insignificant, gratuitous service when he reached the store, not requested or required of him by the master, does not vary this result.

Appeal by plaintiff from GracLy, J., at January Special Term, 1929, of Waice.

No error.

On 25 December, 1926, at 6 p.m., the defendant, Stancil, while driving his automobile from his home on Salisbury Street to the store of Gilmers, Inc., ran over the plaintiff at the intersection of Edenton and Halifax streets and injured her. She brought suit against both defendants, alleging that she had been injured by the negligence of Stancil, and that he was the employee and servant of Gilmers acting within the *795scope of bis employment at tbe time of tbe injury. Upon issues joined by tbe pleadings tbe jury found tbat tbe plaintiff bad been injured by tbe negligence of Stancil, but not by tbe negligence of Gilmers, and tbat tbe plaintiff bad not by ber own negligence contributed to ber injury, and awarded damages in answer to tbe fourth issue. Judgment was rendered against Stancil only, and tbe plaintiff excepted and appealed.

F. T. Bermett and Bailey & Weatherspoon for plaintiff.

Biggs & Broughton for Gilmers, Incorporated.

Adams, J.

His Honor instructed tbe jury if tbey believed tbe evidence and found tbe facts to be as stated by Stancil, tbe only witness on tbe subject, to find in response to tbe second issue tbat tbe plaintiff bad not been injured by tbe negligence of Gilmers. Tbe question is whether there was error in this instruction.

In paragraph ten of tbe complaint it was alleged: “Tbat Gilmers, Incorporated, employed tbe defendant, H. B. Stancil, as superintendent of its store building, and it was contemplated at tbe time of bis said employment and under instructions given said Stancil by tbe manager of said store, tbat tbe said Stancil should go to said store on holidays about night time for tbe purpose of turning on tbe lights for tbe benefit and protection of tbe defendant, Gilmers, Incorporated; tbat 25 December, 1926, tbe time complained of, was a holiday; tbat tbe place of business of Gilmers, Incorporated, bad not been opened tbat day and tbat H. B. Stancil was at tbe time complained of herein on bis way to tbe store for tbe purposes aforesaid.”

This was admitted. It was also admitted tbat no delivery of goods for Gilmers was made by Stancil or any other person on 25 December. It was a legal holiday and tbe store was closed. When Stancil went to tbe store early in tbe morning to turn off tbe lights be made search for a toy which bad not been delivered to tbe purchaser, and failing to get it tried to find a man named Wingo, who operated tbe Merchants Delivery Company, and who should have delivered it; but be did not get in communication with him. Stancil went home about noon and remained there with bis family until about six o’clock. He owned a car which be used regularly in going to and from bis work. Under instructions be used it in times of emergency for tbe delivery of goods; but be bad not been instructed to open the store at Christmas to deliver tbe toy. Tbe direct inquiry is whether at tbe time of tbe alleged injury be was engaged in tbe prosecution of bis employer’s business so as to make tbe employer liable for bis negligence.

Tbe test is whether Stancil at tbe time of tbe injury was acting within tbe scope of bis employment — whether be was engaged in tbe further-*796anee of bis employer’s business. Sawyer v. R. R., 142 N. C., 1; Butler v. Mfg. Co., 182 N. C., 547; Gallop v. Clark, 188 N. C., 186. There is no evidence that Gilmers retained the right to say how he should travel in going to and from the store. He had bought the car for “his own use in going backward and forward.” Gilmers had no interest in it and no control over it except “in times of emergency when used under Cooper’s instructions.”

It was held in Linville v. Nissen, 162 N. C., 95, 101, that the doctrine of respondeat superior applies only when the relation of employer and employee “is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong at the time and in respeict to the transaction out of which the injury arose.” This familiar principle which has been recently applied in a number of cases does not require at this time a full or elaborate discussion. Bilyeu v. Beck, 178 N. C., 481; Reich v. Cone, 180 N. C., 267; Grier v. Grier, 192 N. C., 760; Peters v. Tea Co., 194 N. C., 172.

Upon the admitted facts Stancil was not engaged in the furtherance of his master’s business at the time of the injury. His sole duty Avas to turn on the lights; this duty could not be performed by him before he arrived at the store. Upon his arrival there he was to enter upon the discharge of the specific duty he was to perform on holidays, and his mode of traveling was his personal affair. To permit a recovery against Gilmers under these circumstances would be to enlarge the rule of respondeat superior to such an extent as to make the master liable for every negligent act his servant might commit while going to or from his place of work, though transported in a vehicle of his own selection over which the master had no control and in which he had no interest.

We are not inadvertent to StanciFs saying that as he came down the street he “was intending” to make a search in the building for the lost package and “was intending” to look for Wingo; but in fact he searched neither for the package nor for Wingo, and his purpose or intention did not determine the legal relation which at that time existed between him and his employer. He testified, “I would not have gone back to Wingo’s that night, and I might have tried to straighten out those packages if I had not had this trouble.” But at the time the injury occurred he had not found the package and was not engaged in delivering it.

The cases cited by the appellant which hold that the master may be liable if his servant’s automobile is habitually used in the master’s business, we think, have no application to the facts disclosed by Stancil’s testimony; the car was used in the service of Gilmers, not habitually, but on occasions of necessity. A comparison of the facts in each of these cases with the facts in the present case will readily show wherein they may be distinguished.

*797Tbe appellant’s brief contains tbis statement: “The weight of authority holds that where one is returning to his employer’s place of business to resume his duties he has returned to the pursuit of his master’s business from the time he begins the journey to the master’s place of business.” This statement is too broad to be strictly accurate. It must be examined in the light of the cases cited in its support. These eases show that the chauffeur was engaged in the operation of the master’s car with his permission, if not under his positive direction, and are based upon facts entirely at variance with those disclosed by the evidence here.

We should profit little by reviewing and distinguishing the cited decisions of other courts, but we may refer to the two decisions of this Court on which the appellant seems to rely. In Adams v. Foy, 176 N. C., 695, it was shown that Workman, an employee of Foy & Shem-well, took from their garage in Lexington a car owned by one McIlvaine, drove it to Thomasville, and on the return caused the injury by a collision. When the plaintiff went.to see Foy & Shemwell in reference to the payment of damages, Shemwell said that “he was not responsible for the troubles Workman got into while he was out.” A motion for nonsuit was denied, the court holding that the phrase “while he was out” was susceptible of more than one construction and was to be determined by a jury. Misenheimer v. Hayman, 195 N. C., 613, raised the questions whether the truck was the property of the defendant and whether the driver was engaged in the prosecution of the defendant’s business at the time of the injury. The truck bore the name of the defendant or the defendant’s meat market and the defendant was engaged in the business of selling and delivering meat from his market. It was decided that these circumstances were evidence for the jury to consider.

In our ease the evidence may reasonably be given only one construction : at the time of the injury Stancil was not engaged in the prosecution of his employer’s business. Neither of the cases just referred to is inconsistent with the defendant’s position. We find

No error.