#### ROBERT TERRY v. MONTGOMERY WARD COMPANY and TOM TERRY and ELSIE LYNN TERRY v. MONTGOMERY WARD COMPANY and TOM TERRY.

(Filed 15 June, 1936.)

Automobiles E b—

In order to bold an employer liable for tbe • negligent driving of bis employee, plaintiff must establish not only.tbe fact of employment, but also that tbe employee, at tbe time of tbe collision, was engaged in tbe performance of some duty incident to bis employment.

Appeal by plaintiffs from Gracly, J., at September Term, 1935, of Durham.

Affirmed.

Tbe above entitled actions to recover damages for injuries suffered by tbe plaintiff in each action, and resulting from a collision between a truck driven by tbe defendant Tom Terry and an automobile in which tbe plaintiffs were riding, were consolidated, by consent, for trial.

It is alleged in tbe complaint in each action that tbe collision which resulted in injury to tbe plaintiff therein was caused by tbe negligence of tbe defendant Tom Terry, while driving tbe truck as an employee of bis codefendant, Montgomery Ward Company. This allegation is denied in tbe answer of tbe defendants.

From judgment dismissing both actions as to tbe defendant Montgomery Ward Company, the plaintiffs appealed to tbe Supreme Court, assigning errors in tbe trial and in tbe judgment.

Henry Bane and Harvey Harward for plaintiff.

Bryant & J ones for defendant.

*352Per Curiam.

Conceding without deciding that there was evidence at the trial of these actions tending to show that at the time the plaintiffs were injured, the defendant Tom Terry was an employee of his co-defendant, Montgomery Ward Company, and was not an independent contractor as contended by the defendants, we are of opinion that there was no evidence tending to show that the defendant Tom Terry was at the time of the collision engaged in the performance of any duty incident to his employment.

For this reason, there is no error in the judgment dismissing the action as to the defendant Montgomery Ward Company at the close of the evidence. See Wilkie v. Stancil, 196 N. C., 794, 147 S. E., 296; Peters v. Tea Company, 194 N. C., 172, 138 S. E., 595; Grier v. Grier, 192 N. C., 760, 135 S. E., 852.

The judgment is

Affirmed.