{ "id": 11299697, "name": "MAGNOLIA RIDDLE, by Her Best Friend, E. C. RIDDLE, v. WILBURN WHISNANT and J. E. GUT", "name_abbreviation": "Riddle ex rel. Riddle v. Whisnant", "decision_date": "1941-10-08", "docket_number": "", "first_page": "131", "last_page": "135", "citations": [ { "type": "official", "cite": "220 N.C. 131" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "216 N. C., 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610660 ], "opinion_index": 0, "case_paths": [ "/nc/216/0584-01" ] }, { "cite": "7 Jones, 356", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2088522 ], "opinion_index": 0, "case_paths": [ "/nc/52/0356-01" ] }, { "cite": "88 N. C., 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682885 ], "opinion_index": 0, "case_paths": [ "/nc/88/0186-01" ] }, { "cite": "142 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651463 ], "opinion_index": 0, "case_paths": [ "/nc/142/0001-01" ] }, { "cite": "192 N. C., 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626766 ], "opinion_index": 0, "case_paths": [ "/nc/192/0760-01" ] } ], "analysis": { "cardinality": 533, "char_count": 11512, "ocr_confidence": 0.454, "pagerank": { "raw": 1.0629795532561409e-07, "percentile": 0.557559340332197 }, "sha256": "af42794bddc0f8b628840a805bc54b6703cdf30cf480d7198fe189957f01d854", "simhash": "1:d2034981b885926b", "word_count": 2139 }, "last_updated": "2023-07-14T14:44:04.432821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MAGNOLIA RIDDLE, by Her Best Friend, E. C. RIDDLE, v. WILBURN WHISNANT and J. E. GUT." ], "opinions": [ { "text": "CiaeksoN, J.\nAt the close of the plaintiff\u2019s evidence, on motion of defendant J. E. Guy, the court below granted judgment as in case of nonsuit as to him. C. S., 567. In this we can see no error.\nOn a motion to nonsuit, the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference drawn therefrom.\nThere seems to be no controversy that the plaintiff was seriously injured by the negligence of Wilburn Whisnant. He filed no answer to the charge of negligence made by plaintiff against him.\nThe questions involved: At the time of the injury to plaintiff, was Wilburn Whisnant acting as agent and servant of J. E. Guy; if so, was he acting in the scope of his employment at the time of the accident? We think the answers must be No.\nThe strongest evidence for plaintiff was that of Wilburn Whisnant, a defendant and driver of the car. He testified, in part: \u201cI was paid a straight salary of $10 per week. I worked there in the shop part of the time. There was no agreement what I was to do, whether I was to sell' cai\u2019s, or mechanic, or what. I never sold a car. I would work around there from around eight o\u2019clock in the morning to five in the afternoon, I would say, something like that. ... I did not tell him (J. E. Guy) anything about going to Micaville and I didn\u2019t tell him anything about going anywhere with the car on Sunday.\u201d\nIn Grier v. Grier, 192 N. C., 760 (763), is the following: \u201cThe answer to this question depends upon whether or not the salesman, at the time of committing the negligent act, was acting within the \u2018scope of his employment.\u2019 One of the leading cases in this State on the question of \u2018scope of employment\u2019 is Sawyer v. R. R., 142 N. C., 1. Justice Hoke, quoting from Wood on Master and Servant, says: \u2018The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred or fairly implied from the nature of the employment and the duties incident to it. The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master\u2019s business, but whether they were done by the servant in furtherance thereof and were such as may fairly be said to have been authorized by him. By \u201cauthorized\u201d is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.\u2019 \u201d\nIn Covington v. Threadgill, 88 N. C., 186 (189), we find: \u201cIn Melvin v. Easley, 7 Jones, 356, it was conceded by the whole Court, though they differed as to other points, that a contract made on Sunday was illegal, and could not support an action, upon the ground that the Act of 1741 (Bat. Rev., ch. 115, -sec. 1) declared that \u2018no person shall on Sunday exercise the work of his ordinary calling, upon pain that he should forfeit and pay one dollar, and it was expressly said that no distinction could be admitted between contracts made in contravention of the policy of the law, whether malum in se or malum prohibitum\nThe trip made in defendant\u2019s automobile was on Sunday, not in the scope of Whisnant\u2019s employment, and was without Guy\u2019s permission. The purpose was personal \u2014 an outing and visit by Whisnant, taking his wife and two children with him. Whisnant went on an errand of his own (to get his wife and children) when the accident occurred. He testified: \u201cFred Thomas and I went to the Jig Mine and I left Fred Thomas at the Jig Mine. That was about five miles East of Micaville. I then went back to Mieaville to get my family. Fred Thomas was not with me when I went back to Mieaville. I got my wife and children and Pearl Wilson and it was about dusk then. I was going hack to see Fred Thomas. I wanted to see him before I went home. ... I went back and got my family in Mieaville and then was going East when this accident happened. This accident happened before I got back to the point where I had left Fred Thomas.\u201d\nIn Blashfield Cye., Vol. 5, pages 175-6, see. 3029, the following rule is laid down: \u201cThe general rule is that a servant in charge of his master\u2019s automobile, who, though originally bound upon a mission for his master, completely forsakes his employment and goes upon an errand exclusively his own, and while so engaged commits a tort, does not thereby render the master answerable for such tort under the rule of respondeat superior,\u201d citing a wealth of authorities. Parrott v. Kantor, 216 N. C., 584.\nWe think the cases cited by plaintiff distinguishable from the present one. We see no error in the exclusion of the evidence in regard to an agreement as to inspecting the automobile of Fred Thomas. It was immaterial and irrelevant.\nFor the reasons given, the judgment of the court below is\nAffirmed.", "type": "majority", "author": "CiaeksoN, J." } ], "attorneys": [ "Briggs & Atlcins for plaintiff.", "Williams <& Cocke for defendant." ], "corrections": "", "head_matter": "MAGNOLIA RIDDLE, by Her Best Friend, E. C. RIDDLE, v. WILBURN WHISNANT and J. E. GUT.\n(Filed 8 October, 1941.)\n1. Trial \u00a7 22b\u2014\nUpon motion to nonsuit, the evidence tending to support plaintiff\u2019s cause of action is to be considered in the light most favorable to him, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. O. S., 567.\n2. Automobiles \u00a7 24b \u2014 Evidence held insufficient for jury upon issue of respondeat superior.\nEvidence tending to show that the driver of the car was employed in a garage, that the employer permitted the employee to take his car for use of the employee in driving to his home Saturday night and in returning to work Monday morning, that the employee, in response to questioning by the employer, stated that he would get another car if he had to make a trip on Sunday, and that the accident in suit occurred while the employee was driving the car on Sunday on a personal errand, is held insufficient to be submitted to the jury upon the doctrine of respondeat superior.\nAppeal by plaintiff from Olive, Special Judge, at April-May, 1941, Special Term, of YaNCey.\nAffirmed.\nTbis is an action brought by plaintiff against the defendants for damages for injuries sustained by tbe plaintiff while riding as a passenger in an automobile, operated by one E. C. Riddle, which collided with a 1936 Plymouth Tudor Sedan, on 15 December, 1940, while being operated by the defendant Wilburn Whisnant, whom the plaintiff alleges was acting as agent and servant of his codefendant, J. E. Guy.\nThe defendant Wilburn Whisnant filed no answer in the action. The defendant J. E. Guy filed an answer and denied the allegations of the complaint. \u201cThat at said time and place the defendant Wilburn Whis-nant was operating the said Plymouth automobile as agent and servant of his codefendant, J. E. Guy.\u201d\nWilburn Whisnant, a defendant in tbis action and a witness for plaintiff, testified, in part: \u201cI began working for Mr. Guy on December 5tb, 1940, as a mechanic and to help sell anything there was to sell. I was paid a straight salary of $10.00 per week. I worked there in the shop part of the time. There was no agreement what I was to do, whether I was to sell cars, or mechanic or what, I never sold a car. I would work around there from eight o\u2019clock in the morning to five in the afternoon, I would say, something like that. I live about four miles from Spruce Pine, at Estatoe. Up until Friday, December 13th, I would go back and forward to work with John Miller. Then John Miller quit working there on Friday, the 13th, and I asked Mr. Pierce if I could have a car to go to my home and back the next morning. I had a conversation with Mr. Guy, when I started home Saturday. He asked me which car I was going to drive, he asked me if I was going to use that car on Sunday and I told him if I was going on any particular business of my own I could get another car. He did not tell me he didn\u2019t want me to drive that car. He did not ask me if I was going to drive it anywhere on Sunday. He asked me if I was going anywhere on Sunday. I told him not that I knew of, and if I was going anywhere on any other business, I could get another man\u2019s car. I told him if I was going anywhere on particular business, I could get another car. I told him I wasn\u2019t going to use the car and if I went anywhere on particular business I could get another car. I did not tell him anything about going to Micaville, and I didn\u2019t tell him anything about going anywhere with the car on Sunday. At that time, Miss Pearl Wilson was staying with us and she lived with Mr. Zeb Thomas at Micaville. My wife and I did not take Pearl Wilson to Zeb Thomas\u2019 house at Micaville on Saturday night. She had gone on Friday on the bus. Mrs. Zeb Thomas is my wife\u2019s aunt, I think. I and my wife went to her aunt\u2019s house, Zeb Thomas\u2019, Saturday night. Miss Faye Wilson was there at that time. She volunteered to come home with us, and came home with us Saturday night. She is no kin to my wife. I did not see Fred Thomas at all that night. I spent the evening at Zeb Thomas\u2019 house from around 7:30 to around 9 :00 o\u2019clock. On Sunday, I. and my wife and family went back to Zeb Thomas\u2019 at Micaville, and we took Faye Wilson back with us. . . . On Sunday afternoon, I went to see Fred Thomas and my wife and two children went along with me. Like I told you a while ago, there was no parking place, and I went up to Zeb Thomas\u2019 house. It was where I always parked when I used to live there. Faye Wilson was living with her mother upstairs in the same house with Zeb Thomas. I took my wife and two children to Zeb Thomas\u2019 house, they went along with me. We got there around two to two-thirty o\u2019clock. . . . Fred Thomas came up to Zeb Thomas\u2019 house while my family and I were there, and be and I got in this ear and went from Micaville up to the Jig Mine, wbicb was a little better than five miles from Mica-ville. That Jig Mine was between Micaville and Estatoe, my borne. \"Fred Thomas and I went to the Jig Mine and I left Fred Thomas at the Jig Mine. That was about five miles East of Micaville. I then went back to Micaville to get my family. Fred Thomas was not with me when I went back to Micaville. I got my wife and children and Pearl Wilson and it was about dusk then. I was going back to see Fred Thomas. I wanted to see him before I went home. ... I went back and got my family in Micaville and then was going East when this accident happened. This accident happened before I got back to the point where I had left Fred Thomas. I had left Fred Thomas on this main highway from Micaville to Spruce Pine and the accident happened about a mile and a half from Micaville. I had gone back five miles to get my family and was about a mile and a half back on the road when the accident happened East of Micaville. In going from Mica-ville to Estatoe to my home, I go right by the place I had left Fred Thomas. I did not see Fred Thomas any more that day.\u201d\nAt the close of plaintiff\u2019s evidence, the defendant, J. E. Guy, moved for judgment as in case of nonsuit, which motion was allowed, and judgment was thereupon rendered by the court dismissing the action as of nonsuit. Upon the dismissal of the action, as to the defendant, J. E. Guy, the plaintiff took a voluntary nonsuit as to the defendant, Wilburn Whisnant, .excepted to the ruling of the court in granting the motion of nonsuit as to the defendant J. E. Guy, excepted, assigned error, and appealed to the Supreme Court.\nBriggs & Atlcins for plaintiff.\nWilliams <& Cocke for defendant." }, "file_name": "0131-01", "first_page_order": 175, "last_page_order": 179 }