Robinson v. . Sear, Roebuck Co. , 216 N.C. 322 ( 1939 )

SEAWELL, J., dissenting. Civil action to recover damages for personal injuries alleged to have been sustained by reason of the willful wrong or negligent act of the defendant.

The facts are these: On Saturday evening, 10 September, 1938, just after dark, the plaintiff went to the store of the corporate defendant in Asheville to pay a bill. Max Lewis was in the store at the time in the discharge of his duties as an employee of the corporate defendant. While the young lady in the office was receiving plaintiff's payment, the defendant Max Lewis called to her from the main floor, "Don't be so damned slow." Whereupon she remarked to the plaintiff: "That's the contrariest, hatefulest fellow I have ever seen."

After paying his bill and obtaining receipt therefor, the plaintiff started down the steps from the office to the main floor, and near the foot of the steps he met Max Lewis, who remarked to him, "That is the damnest slowest bunch of girls I have ever seen." The plaintiff replied, "You are no gentleman or you wouldn't talk to them that way." His retort was, "I will do you worse than that." He turned around and said, "Come this way." The two went out the back door and engaged in a fist fight near an alleyway. Plaintiff sues to recover for the injuries sustained in the fight.

On cross-examination the plaintiff stated that the conversation which he had with Lewis was not about the business of the corporate defendant: "It was about a personal matter between me and Lewis. . . . I just didn't think he was a gentleman or he wouldn't talk to them like that. I thought it was my place to tell him and that is what I told him."

From judgment of nonsuit as to the corporate defendant, the plaintiff appealed to the Superior Court of Buncombe County where the judgment of the general county court was affirmed.

Plaintiff again appeals, assigning error. When the plaintiff went out of his way to reprimand the individual defendant for his manner of speech or his intemperate language about the girls in the store, he fell under the proverbial comparison of "He that passeth by, and meddleth with strife belonging not to him, is like one that taketh a dog by the ears." Prov. 26:17. The plaintiff was under no legal duty to reprove the defendant Lewis, however strongly he may have been inclined to do so. His business with the corporate defendant had ended, and he concedes "the fight was over a personal matter." This brings the case within the principle of Snow v. DeButts, 212 N.C. 120, 193 S.E. 224, where the motion to nonsuit was sustained, and distinguishes it from Munickv. Durham, 181 N.C. 188, 106 S.E. 665, cited and relied upon by plaintiff. Cf. Long v. Eagle Store Co., 214 N.C. 146, 198 S.E. 573;Robinson v. McAlhaney, ibid., 180, 198 S.E. 647; Dickerson v. RefiningCo., 201 N.C. 90, 159 S.E. 446.

The authorities are to the effect that where an assault by an employee is purely personal, having no connection with the employer's business but a merely accidental or incidental one, the doctrine of respondeat superior is inapplicable and cannot be successfully invoked to support a recovery against the employer. Parrish v. Mfg. Co., 211 N.C. 7, 188 S.E. 817;Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Bucken v. R. R.,157 N.C. 443, 73 S.E. 137; Dover v. Mfg. Co., ibid., 324, 72 S.E. 1067; Annotations: 40 A.L.R., 1212; 114 A.L.R., 1033.

"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 Bright v. Tel. Co.,213 N.C. 208, 195 S.E. 391; Liverman v. Cline, 212 N.C. 43,192 S.E. 489; Linville v. Nissen, supra; Van Landingham v. SewingMachine Co., 207 N.C. 355, 177 S.E. 754, and is universally held for law. Doran v. Thomsen, 76 N.J.L. 754. See Tribble v. Swinson, 213 N.C. 550,196 S.E. 820; Cole v. Funeral Home, 207 N.C. 271, 176 S.E. 553; 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.

It results that the motion to nonsuit was properly sustained.

Affirmed.