Holder v. Haynes , 193 S.C. 176 ( 1940 )

We have read with especial care the petition for rehearing in this case.

The testimony upon which petitioners rely to support their argument that there was evidence which required that the case be submitted to the jury on the issue whether Willie Johnson was engaged in the business of his employer, is at best the foundation for speculation and conjecture; and cannot offset the positive and uncontradicted testimony of John E. Haynes that Willie Johnson had been forbidden to use the truck for his private business or pleasure, or his own purpose. We think there can be no reasonable deduction except that Willie Johnson was engaged in the pursuit of his own affairs when the collision occurred, and not engaged in the business of his employment.

In addition to the authorities cited in the opinion, see the case of Kavanaugh v. Wheeling, 7 S.E.2d 125, a case from the Supreme Court of Appeals of Virginia, filed February 26, 1940, in which the facts are in strict similarity with the facts of this case; and the conclusions of the Court are in exact parallel with ours.

The Court did not overlook the proposition, nor the argument of counsel, that the defendant insurance company is liable, even if J.E. Haynes is not. There is authority for that position; but there is authority against it. In the judgment of this Court, the latter is the sounder doctrine, as stated in our opinion.

The petition for rehearing is denied.

MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE E.C. DENNIS concur.