{
  "id": 8598741,
  "name": "J. A. LIVERMAN v. F. D. CLINE",
  "name_abbreviation": "Liverman v. Cline",
  "decision_date": "1937-09-22",
  "docket_number": "",
  "first_page": "43",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "analysis": {
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  "last_updated": "2023-07-14T21:30:43.466662+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "J. A. LIVERMAN v. F. D. CLINE."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nWithout debating the question of plaintiff\u2019s alleged contributory negligence, we think the judgment of nonsuit must be upheld on the ground that the record fails to disclose any relation of employer and employee between the defendant and Ralph Gibbs, the driver of the truck at the time of plaintiff\u2019s injury.\n\u201cWhere 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.\u201d Wyllie v. Palmer, 137 N. Y., 248.\nThe foregoing was quoted with approval in Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096, and Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126, and is universally held for law. Doran v. Thomsen, 76 N. J. L., 754. See, also, Cole v. Funeral Home, 207 N. C., 271, 176 S. E., 553, and 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.\nOn the record, the judgment of nonsuit is correct.\nAffirmed.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "J. Henry LeRoy and Thompson & Wilson for plaintiff, appellant.",
      "Charles Whedbee and John II. Hall for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "J. A. LIVERMAN v. F. D. CLINE.\n(Filed 22 September, 1937.)\n1. Automobiles \u00a7 24c \u2014 Plaintiff must show that alleged employee was employed by defendant and was acting in scope of employment at the time.\nEvidence failing to show the ownership of the truck involved in the collision, and failing to show that at the time the driver of the truck was engaged in the performance of his duties and was employed in the particular transaction by the defendant sought to be held upon the principle of respondeat superior, is insufficient to overrule such defendant\u2019s motion to nonsuit.\n2. Master and Servant \u00a7 21a \u2014 Respondeat superior applies only when relation of master and servant is shown to exist as to the specific transaction.\nThe doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged, at the time of and in respect to the very transaction out of which the injury arose, and proof merely that the former was in the general employment and pay of the latter is insufficient.\nAppeal by plaintiff from Cowper, Special Judge, at May Term, 1937, of PasquotaNK.\nCivil action to recover damages for personal injuries alleged to bave been caused by tbe wrongful act, neglect, or default of tbe defendant.\nTbe defendant is a road contractor, and in July, 1936, was engaged in building an aspbalt road from Camden to Sbilob in Camden County. Tbis road connects with State Highway No. 30, a mucb traveled highway.\nOn tbe night of 13 July, 1936, while traveling on said highway, plaintiff ran his automobile into the rear of a truck operated at the time by Ralph Gibbs. Gibbs was hauling sand at the time. He testifies without contradiction: \u201cI was working for Mr. J. Brown Evans. He was the man who hired me. On the night in question I was hauling sand. ... I had not done any night hauling before this particular time and I did not haul any after that night.\u201d It is in evidence that Ralph Gibbs, a truck driver, was on the defendant\u2019s pay roll as asphalt hauler, being paid by the hour, but was not paid by the defendant for hauling sand. As asphalt hauler he worked only in the daytime and not at night. It seems that the work of hauling sand from a nearby pit to defendant\u2019s asphalt plant was separate and distinct from that of hauling asphalt from the plant to the road construction project.\nIt is not in evidence as to who owned the truck Gibbs was driving. Clyde Mungo, who was likewise hauling sand that night, testifies: \u201cI had my own personal truck down there hauling sand. ... I was working under Mr. LeRoy Chandler. He was the truck foreman for Mr. R. E. Fuller. R. E. Fuller paid me. . . . This was the only occasion that Gibbs and his truck worked at night. It was the only occasion that I worked at night.\u201d\nLeRoy Chandler testifies: \u201cOn 13 July, 1936, I was truck foreman for R. E. Fuller, who is a contractor. . . . Mr. Gibbs on that particular night was hauling sand for Mr. Fuller.\u201d\nThe only evidence of negligence in the operation of the truck driven by Gibbs is, that its rear light was not lighted at the time plaintiff ran into it. This evidence is strongly contradicted, and defendant elicited from plaintiff, on cross-examination, testimony tending to show -that he was contributorily negligent.\nFrom judgment of nonsuit entered at the close of all the evidence, plaintiff appeals, assigning errors.\nJ. Henry LeRoy and Thompson & Wilson for plaintiff, appellant.\nCharles Whedbee and John II. Hall for defendant, appellee."
  },
  "file_name": "0043-01",
  "first_page_order": 113,
  "last_page_order": 115
}