Liverman v. Cline

Stacy, C. J.

Without debating the question of plaintiff’s alleged contributory negligence, we think the judgment of nonsuit must be upheld *45 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’s injury.

“Where 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.”

Wyllie v. Palmer, 137 N. Y., 248 .

The 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 .

On the record, the judgment of nonsuit is correct.

Affirmed.