#### A. B. KING v. CYNTHIA J. MOTLEY, FRED MOTLEY, JR., and C. FRANK McLEESE, JR.

(Filed 13 December, 1950.)

1. Pleadings § 19c—

A demurrer tests the sufficiency of a pleading, liberally construed and admitting the allegations of fact contained therein and relevant inferences of fact necessarily deducible therefrom, and the demurrer will not be sustained unless the pleading is fatally defective. G.S. 1-151.

2. Automobiles § 24c—

Allegations to the effect that appealing defendant had possession of the automobile in question for his use and enjoyment, that the driver was operating same as his servant and agent and under his direction, and that the appealing defendant was a passenger therein when the driver committed an assault upon plaintiff police officer with his fist and by means of reckless driving in order to escape arrest of them both by the officer, *is held*sufficient to state a cause of action against appealing defendant for assault on the theory of *respondeat superior.*

3. Master and Servant § 22c—

The master is liable for injury inflicted by his servant upon a third person, whether malicious or negligent, when the tort is committed by the servant while acting within the course and scope of his employment.

4. Appeal and Error § 40f—

Exception to the refusal of motion to strike certain allegations from the complaint overruled on this appeal.

*43Appeal by defendant Fred Motley, Jr., from *Patton, Special Judge,*at 18 September, 1950, Extra Civil Term of Meoiclenbueg.

Civil action to recover damages for an alleged “willful, wanton and reckless assault of the defendant McLeese, Jr., in seeking to avoid the arrest of himself and his companion,” heard in Superior Court upon motion of defendants Cynthia J. Motley and Fred Motley, Jr., to strike certain portions of the" complaint, and upon their demurrer *ore tenus*to the complaint of plaintiff.

Upon hearing in Superior Court the motion to strike was allowed in part, and disallowed in part. The portion disallowed is shown within the parentheses in the following material allegations set forth in the complaint, in part summarily stated: That at times hereinafter stated a certain Ford automobile, known as a “hot rod,” of which defendant Cynthia J. Motley was the registered owner, was in the possession and control of her son, the defendant Fred Motley, Jr., being delivered to him by his mother for his use and enjoyment:

“6. That on or about the 7th day of May, 1950, the defendant Fred Motley, Jr., was being driven about the city of Charlotte by his servant and agent, the defendant C. Frank McLeese, Jr., who had been directed by the said Motley to drive the car (because the defendant Motley had been drinking during the afternoon and feared that his license might be revoked if he were caught driving under these circumstances).

“7. That at about 9 p.m. on the aforesaid day the plaintiff A. B. King, ... a member of the Charlotte police force and ... on duty . . . with a fellow officer . . . observed the defendant’s automobile pass him at the junction of Providence and Caswell Eoads in the City of Charlotte at such an excessive rate of speed that they turned around and pursued the ear to make an arrest for speeding.

“8. That the defendants Motley, Jr., and McLeese, Jr., drove into . . . a dead end street ... off of Providence Eoad about four blocks from the intersection with Caswell.

“9. That the defendants turned their ear around and started back out toward Providence Eoad. When their path was obstructed by the police car, the two cars collided and the defendant McLeese, Jr., allowed their ear to roll slowly backwards as the plaintiff approached them.

“10. That the plaintiff proceeded from the squad car to the defendants’ car for the purpose of arresting the defendants and as he reached the defendants’ car, he placed his elbows over the front left door sill of the said car next to the driver McLeese, Jr., and began to question the occupants.

“11. That suddenly and without any warning or sign whatsoever to the plaintiff, the defendant McLeese, Jr., released the clutch and the car shot forward around the police car accelerating at a violent rate of speed.

*44“12. That tbe plaintiff was unable to release bis grip upon tbe door of tbe defendants’ car for fear of falling under it and being run over and, as tbe plaintiff continued to clutcb tbe car, tbe defendant McLeese, Jr., beat tbe plaintiff about tbe bead with bis fist and bands in an attempt to force tbe plaintiff to loosen bis bold.

“13. Tbat as tbe plaintiff clung to tbe defendants’ car, tbe defendant McLeese, Jr., raced it wildly up tbe street accelerating from zero to a rate of 50 or 60 miles an bour witbin a space of 300 or 400 yards, continuing to beat and maul tbe plaintiff in tbe face, and finally gouging tbe plaintiff in tbe eye with bis thumb so violently tbat tbe plaintiff was forced to release bis bold and fall to tbe street.

“14. Tbat as a result of tbe plaintiff’s efforts to prevent bimself from being killed by tbe wilful, wanton and reckless assault of tbe defendant McLeese, Jr., in seeking to avoid tbe arrest of bimself and bis companion, tbis plaintiff was dragged along tbe street for a distance of 3 or 4 hundred yards and finally thrown to tbe ground . . .” to bis injury in respects stated.

“15. Tbat by reason of tbe negligence of tbe defendants as herein alleged, tbe plaintiff has suffered great injury to bis person and has been in great pain and mental anguish all to bis great injury and detriment.”

Tbe demurrer of defendants Motley is upon tbe grounds: Tbat tbe complaint does not state facts sufficient to constitute a cause of action against defendants Cynthia J. Motley and Fred Motley, Jr., or either of them, in tbat in pertinent part, it appears upon tbe face of tbe complaint (a) “tbat tbe injuries and damages, if any, sustained by tbe plaintiff were due solely and proximately to the alleged willful, wanton and reckless assault of tbe defendant C. Frank McLeese, Jr.”; (b) “tbat tbe plaintiff was not injured or damaged by any negligence, act or conduct of tbe defendants Cynthia J. Motley and Fred Motley, Jr., or either of them”; (c) “tbat tbe automobile in question was at all times being driven by tbe defendant C. Frank McLeese, Jr., and not by these defendants, or either of them.”

Tbe presiding judge of Superior Court, upon bearing on demurrer, being of opinion, and bolding, tbat tbe demurrer of defendant Cynthia J. Motley should be sustained, but tbat tbat of defendant Fred Motley, Jr., should be overruled, so adjudged in order entered of record.

Defendant Fred Motley, Jr., excepted (1) to tbe ruling in respect of tbe motion to strike as stated, and (2) to tbe order overruling bis demurrer, and appeals therefrom to tbe Supreme Court, and assigns error.

*Shannonhouse, Bell & Horn and, Bay W. Bradley, Jr., for plaintiff, appellee.*

*Helms*<£ *Mulliss for defendant, appellant.*

*45WiNBOrne, J.

“Tbe office of demurrer is to test tbe sufficiency of a pleading, admitting, for tbe purpose, tbe truth of tbe allegations of fact contained therein; and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted . . .,” *Stacy, C. J.,*in *Ballinger v. Thomas,*195 N.C. 517, 142 S.E. 761. See also *McCampbell v. Building & Loan Asso.,*231 N.C. 647, 58 S.E. 2d 617, and cases there cited.

Tbe statute G-.S. 1-151 requires that “in tbe construction of a pleading for tbe purpose of determining its effect its, allegations shall be liberally construed with a view to substantial justice between tbe parties.” And tbe decisions of this Court, applying tbe provisions of this statute, bold that every reasonable intendment is to be made in favor of tbe pleader. A pleading must be fatally defective before it will be rejected as insufficient. See *McCampbell v. Building and Loan Asso., supra,*and cases cited.

Applying these principles to tbe allegations of tbe complaint in tbe present case, we are unable to say that in no view it fails to state a cause of aption against tbe defendant Fred Motley, Jr.

There is allegation that tbe automobile in question was in tbe possession and control of defendant Fred Motley, Jr., for bis use and enjoyment ; that defendant McLeese was driving tbe automobile as tbe servant and agent of defendant Fred Motley, Jr., and by bis direction; that defendant Fred Motley, Jr., was riding in tbe automobile; and that defendant McLeese not only willfully, wantonly, and recklessly assaulted plaintiff with bis fist, but so operated tbe automobile at unlawful rate of speed and wildly as to cause injury to plaintiff, and that by reason thereof plaintiff has suffered injury.

Tbe allegation is sufficient to support a finding that tbe relationship of master and servant, or of principal and agent, existed between defendant Fred Motley, Jr., and defendant McLeese.

And it is elementary that tbe master is liable for tbe acts of bis servant and tbe principal for tbe acts of bis agent, whether malicious or negligent, which result in injury to third persons, when tbe servant or agent is acting within tbe line of bis duty and exercising tbe functions of bis employment. *Roberts v. R. R.,*143 N.C. 176, 55 S.E. 509; *Dickerson v. Refining Co.,*201 N.C. 90, 159 S.E. 446, and numerous other eases.

“A servant is acting in tbe course of bis employment, when be is engaged in that which be was employed to do, and is at tbe time about bis master’s business. He is not acting in tbe course of bis employment if be is engaged in some pursuit of bis own. Not every deviation from tbe strict execution of bis duty is such an interruption of tbe course of employment as to suspend tbe master’s responsibility. But if there is a total departure from tbe course of tbe master’s business, tbe master is no longer answerable for tbe servant’s conduct.” Tiffany on Agency 270, quoted in *Dickerson v. Refining Co., supra.*

*46“A master is civilly liable for an assault and battery by his servant on the third person if, and only if, it is committed while the servant is acting within the course and scope of his employment.” *Ervin, J.,*in *Hoppe v. Deese,*232 N.C. 698.

And as to the ruling of the Court in reference to the motion to strike, we are of opinion that the portion left in the complaint does not come under the ban of improper pleading. Hence the judgment from which appeal is taken is

Affirmed.