Mehaffey, Admx. v. . Construction Co. , 194 N.C. 717 ( 1927 )

Action for personal injury resulting in death. The plaintiff alleged that the defendant was engaged in building a hard-surface road from Hazelwood to Balsam; that it had several workmen who lived in Hazelwood; that it was a part of the contract of employment that the defendant should carry them to and from the place where they were working; that Decatur Justice and Tom Freeman were employees charged with the duty of driving the defendant's trucks; that the Lee Transportation Company was engaged in hauling material for the defendant, and that Justice, Freeman and the Lee Company transported the employees to and from their work. It is alleged that the plaintiff's intestate, a minor 14 years of age, under a contract with his father, had been employed by the defendant to do certain work in Hazelwood, and in breach of the contract had afterwards been transferred to work on the road and required to ride on one of the defendant's trucks in going to and from his work; that on the occasion referred to in the complaint this truck, driven by Decatur Justice at an unlawful rate of speed, was following another truck negligently driven by Tom Freeman; that Freeman suddenly turned to the left to enter an intersecting road and compelled Justice to turn to the right in order to avoid a collision, and that the intestate was thrown to the ground and killed.

The defendant answered denying the material allegations, especially that either Justice or Freeman was its employee, and alleging that the Lee Transportation Company was an independent contractor. The action was brought against several parties, but finally prosecuted only against the defendant. The jury answered the issues as follows:

1. Did the defendant, Appalachian Construction Company, agree with Lawson Mehaffey, father of the intestate, Kenneth Mehaffey, to employ the said Kenneth Mehaffey to work at Hazelwood, and not to be worked on Highway No. 10 outside of Hazelwood, as alleged in the complaint? Answer: Yes.

2. Did the said defendant commit a breach of said agreement, as alleged in the complaint? Answer: Yes.

3. Was the breach of said agreement the proximate cause of the death of plaintiff's intestate, as alleged in the complaint? Answer: Yes.

4. What damages, if any, is the plaintiff entitled to recover? Answer: $7,000.

Judgment for plaintiff and appeal by defendant for error assigned. The motion to dismiss the action as in case of nonsuit was granted as to the Lee Transportation Company and denied as to the Appalachian Construction Company, against whom it was prosecuted to judgment. In its answer the defendant alleged that the Lee Transportation Company was an independent contractor, and it was said on the argument that because of this independent relation the motion for nonsuit was allowed. Decatur Justice, a witness for the plaintiff, testified that he and Tom Freeman were working for the Lee Transportation Company at the time of the injury; that the intestate fell from the witness's truck "after quitting time," when the Transportation Company had no control over the truck or the driver. Upon this theory it was not only important, but necessary, to ascertain whether the deceased rode on the truck merely at the invitation or by the license of the owner or driver, or whether carrying the deceased on a truck to and from his work was a part of the contract of employment. If the defendant was not obligated to provide transportation for the deceased a mere change in the place of work could hardly be considered the proximate cause of the injury suffered "after quitting time," when the relation of employer and employee had temporarily ceased. It is insisted by the appellant that these phases of the evidence were not clearly presented in the instructions relating to the third issue. The jury was first told in substance that a parent who hires a child of tender years has the right to limit the place where the child is to work; that it is the duty of an employer who assents to the limitation to observe it, and that his failure to live up to the agreement would be a violation of duty which would entitle the plaintiff to recover. If the defendant's contention is correct there may have been a breach of the contract under which the deceased was employed, and still the defendant may not have been liable in damages. This instruction, it is true, is followed by another to the effect that the breach of contract must have been a proximate cause of the injury; but we find no instruction which specifically sets forth the converse of this proposition — that is, that the defendant would not be liable if the intestate was injured while on the truck of one who at the time was in the service of an independent contractor, or who, if not in such service at the time, invited or permitted the intestate to ride on the truck as a matter of accommodation, with no agreement express or implied to render such service, and with no obligation on the part of the defendant to provide such transportation. Of course there is evidence that this duty devolved upon the defendant, but this evidence should have been submitted to the jury under instructions appropriate to the contentions of both parties. The controlling principle is thus stated in Real Estate Co. v. Moser, 175 N.C. 259: "The instruction given is correct as far as it goes, but the judge failed to state the defendant's contention and to instruct them that the defendant had a right to withdraw his proposition under certain conditions, and what those conditions were. Even without a specific instruction, it was incumbent upon the judge to do this, for when the judge assumes to charge and correctly charges the law upon one phase of the evidence the charge is incomplete unless it embraces the law as applicable to the respective contentions of each party, and such failure is reversible error." Jarrett v. High Point Co., 144 N.C. 299; Lea v. Utilities Co., 176 N.C. 514;Butler v. Mfg. Co., 182 N.C. 547.

The following instruction also is subject to exception: "If the plaintiff has satisfied you by the greater weight of the evidence that the real, efficient cause, without which the injury and death would not have resulted, was the breach of this agreement on the part of the defendant, if you find by the greater weight of the evidence that he made the agreement claimed by the plaintiff, then your answer to the first three issues would be Yes, but if the plaintiff has not satisfied you by the greater weight of the evidence, then you would answer the first issue No." Under what circumstances were the second and third to be answered in the negative? The appellant is entitled to a

New trial.