#### GRACE W. LERTZ v. HUGHES BROTHERS, INCORPORATED, et al.

(Filed 18 September, 1935.)

1. Master and Servant D lb — Evidence Reid sufficient to be submitted to jury on issue oí whether employee was acting in scope of his employment.

The evidence, considered in the light most favorable to plaintiff upon defendant’s motion as of nonsuit, tended to show that an employee of a filling station was given a ten dollar bill and instructed to get small change and get his supper, and in order to hurry back to relieve another employee, was instructed to use the car of a customer of the station, that the employee took a circuitous route and took women passengers into the car with him, but that at several places on the circuitous route he said *491lie was getting out to get change for his employer, and that at the time of his collision with the car in which plaintiff was riding, he was returning to the filling station for the purpose of delivering the change, which the uncontradicted evidence showed he had in his possession at the timé of the accident. *Held:*There was more than a scintilla of evidence tending to show that the act complained of was within the scope of the employee’s employment and in furtherance of the employer’s business, and defendant employer’s motion as of nonsuit on the issue was properly refused.

3. Same — Rule of master’s liability for acts of servant will he liberally construed.

The modern tendency is to give the rule that holds a master liable for the acts of his servant when about his master’s business a liberal and practical application, especially where the business of the master entrusted to the servant involves a duty owed by him to the public or third persons.

3. Corporations K c—

Where a corporation has been served with summons and has filed answer, the action against it does not abate upon its subsequent dissolution, C. S., 1199, and its directors are made trustees of its property by statute, C. S., 1193, 1194.

Stacy, C. J., dissenting.

Appeal by tbe defendant from *Frizzelle, J.,*at February Term, 1935, of New HaNOveR.

No error.

Tbis was a civil action instituted by tbe plaintiff to recover damages for personal injuries alleged to bave been caused by tbe negligence of one Joe Campbell, an employee of tbe defendant corporation, while acting witbin tbe scope of bis employment. Tbe issues submitted and tbe answers made thereto were as follows:

“1. Was Joe Campbell, at tbe time of tbe collision, acting witbin tbe scope of bis employment, and in furtherance of bis employer’s business ? Answer: Yes.

“2. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged? Answer: Yes.

“3. What damage, if any, is tbe plaintiff entitled to recover ? Answer: $2,500.”

From a judgment upon tbe verdict, tbe defendant corporation appealed to tbe Supreme Court, assigning errors.

*Kellum & Humphrey and- B. M. Eermon for plaintiff, appellee.*

*John D. Bellamy & Sons for defendant, appellant.*

ScheNcx, J.

Upon tbe plaintiff’s resting her case, and at tbe close of all tbe evidence, tbe defendant corporation moved to dismiss tbe action and for a judgment as of nonsuit, and contended that there was *492not sufficient evidence upon wbicb to submit tbe first issue to tbe jury, and upon tbis appeal, seeks to bave tbe order denying tbis motion reversed.

Tbe plaintiffs evidence is to tbe effect that tbe defendant corporation operated a filling station at tbe corner of Eleventh and Market streets in tbe City of Wilmington, where gasoline, oil, and other supplies were sold and cars were greased, washed, and otherwise serviced; and where one Mr. D. B. Hill, a traveling salesman, was in tbe habit of leaving bis car over Sunday to be serviced, and that such car was left at such filling station for such purpose over Sunday, 23 February, 1930; and that at about twenty minutes of five o’clock in tbe afternoon of that day, Joe Campbell, a colored employee at said filling station, upon announcing bis intention of going to get bis supper in order to get back by five o’clock to relieve Roger Williams, a coemployee, was given by J. G. Farley, who was in charge of tbe filling station at that time, a ten dollar bill and a one dollar bill, and instructed to procure change therefor and to obtain as many as one hundred pennies; and that to enable Campbell to make tbe trip more quickly, Farley instructed him to take tbe car of Hill. That Campbell took tbe Hill car and went to bis boarding place, seven blocks away, and then took a circuitous route of some three or four miles by tbe airport, and on Little Gordon Road drove tbe Hill car into tbe rear of tbe car of Mrs. Julia McLaurin, overturning it and causing serious injuries to tbe plaintiff, who was a passenger therein.

Since there was sufficient evidence of negligence on tbe part of Joe Campbell, and of serious injuries to tbe plaintiff proximately caused thereby, and since tbe jury bave answered tbe second and third issues in favor of tbe plaintiff, tbe determinative question on tbis appeal is whether there was sufficient evidence to submit tbe first issue to tbe jury. Tbe answer to tbis question depends upon whether there was sufficient evidence to be submitted to tbe jury that Campbell was acting within tbe scope of bis employment and in furtherance of bis employer’s business at tbe time tbe injuries were inflicted. The contention of the_.de-fendant 'is that Campbell deviated,_from bis original mission .and1 .was, therefore, not acting within tbe scope of bis employment. Tbe contention of tbe plaintiff is that Campbell, while be may bave taken a circuitous route and may bave taken passengers into tbe car while on such route, was still in pursuit of tbe original purposes be was sent to accomplish, namely, to get bis supper and to obtain change, and to burry back to relieve Roger Williams.

Tbe evidence is conflicting and may bave justified tbe answering of tbe first issue in tbe negative, but since there was more than a scintilla of evidence tending to show that tbe act complained of was within tbe *493scope of tbe servant’s employment, it was properly submitted, to tbe jury. *Sawyer v. R. R.,*142 N. C., 1.

“A servant is acting witbin tbe course of bis employment wben be is engaged in tbat wbicb 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 the 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 the master’s business, the master is no longer answerable for the servant’s conduct.” Tiffany on Agency, p. 270. *Robertson v. Power Co.,*204 N. C., 359.

Notwithstanding tbe fact tbat Campbell took a circuitous route, and notwithstanding tbe further fact tbat be took women passengers into tbe car with him to give them an “airing out,” we do not think the evidence establishes, as a matter of law, tbat there was “a total departure from the course of the master’s business.” There is evidence tending to show tbat at more than two places on tbe circuitous route, Campbell said be was out getting change for bis employer, and tbe uncontradicted evidence is tbat be bad not as yet delivered tbe change at tbe filling station and still bad it in his possession at tbe time of tbe collision, and there was evidence tending to show tbat at tbat time be was on bis way to tbe filling station for tbe purpose of delivering tbe change.

Construing tbe evidence most favorably to tbe plaintiff, as we must do on a motion to nonsuit, we have substantially tbe following fact situation: Joe Campbell, a Negro employee of a filling station, whose duties required him to work about tbe station and at times to drive automobiles for bis employer, leaves tbe filling station at twenty minutes of five ■o’clock for tbe purpose of getting supper, and is instructed by bis employer to take a car wbicb bad been left in tbe custody of bis employer, tbat be might get change and “burry back” to relieve another employee, at five o’clock; and tbat while on tbe mission of getting supper and change and hurrying back, Campbell takes a circuitous route and picks up women passengers, and while driving with tbe passengers and tbe ■change back to tbe filling station, negligently runs tbe car furnished him by bis employer, into tbe car in wbicb tbe plaintiff was riding, thereby injuring her.

In view of tbe modern tendency to give to tbe rule tbat bolds a master liable .for. tbe. acts of _ bis servant ..when about Ms .master’s business, a liberal and practicable application, especially where tbe business of tbe master entrusted to bis servant involves a duty owed by him to the.public or third jaersons. *Robertson v. Power Co., supra,*we are constrained to bold tbat there was evidence to support tbe finding offacts sufficient to *494furnish a basis for thejury_taÍB.fer .that the automobile .which Campbell was chiving was, at the time of the collision, being operated jn_the_sso,pe of his employment and in the furtherance of his master’s business. It follows that the plaintiff, by such a showing, made out a *prima facie*case, and it became the function of the jury to determine the weight and credibility of the evidence offered by the parties. *Jeffrey v. Mfg. Company,*197 N. C., 724.

The defendant’s contention that the action should have been dismissed for that Hughes Brothers, Incorporated, had been dissolved, and that suit could not, therefore, be entertained against it, is untenable. O. S., 1199, expressly provides that such action does not abate. The evidence in this case shows that the dissolution of the defendant corporation, if there has been a dissolution thereof, took place after the institution of this action and after said corporation had filed answer therein, and that the directors, who are made trustees of the corporation by the statute, had notice of the entering of the judgment, since they were made parties to the action. C. S., 1193 and 1194.

We have examined those exceptive assignments of error which relate to the admission and exclusion of evidence, and also those which assail the charge, and find no prejudicial or reversible error.

No error.

Staot, C. J.,

dissenting: Joe Campbell had twenty-five minutes to go seven city blocks in a southerly direction, eat his supper, get some change on the way, if he could, and return by 5 o’clock to relieve Roger' Williams. His principal mission was to get his supper and “Ijiurry back”; changing the bills was only incidental. The collision occurred an hour later, out in the country, four or five miles north of the filling, station. In the meantime, Joe had taken two women on a “joy ride,” going by the airport, two miles north of the City of Wilmington, and thence out into the country. He was drinking. To say that he was. still in pursuit of change is “a little the ’rise of the fact,” nowithstand-ing his statements, and makes Brobdingnagian that which is hardly Lilliputian. At any rate, Joe had greatly exceeded his instructions. He was not about his master’s business at the time of plaintiff’s injury. *Martin v. Bus Line,*197 N. C., 720, 150 S. E., 501; *VanLandingham v. Sewing Machine Co.,*207 N. C., 355, 177 S. E., 126.