#### M. T. LINDSEY and EUNICE LINDSEY, Administratrix of the Estate of M. T. LINDSEY, Deceased, v. E. G. LEONARD and BURNETTE HOME SUPPLY COMPANY.

(Filed 1 February, 1952.)

1. Automobiles § 24a—

The driver must be the agent or employee at the time of and in respect to the very transaction out of which the injury arose in order to hold the principal or employer liable for his negligent operation of the vehicle.

2. Principal and Agent § 13c—

Allegations in defendant’s answer that the driver of the car was under contract with defendant to sell defendant’s merchandise on a commission basis does not tend to show the existence of the relationship of principal and agent between defendant and the driver, and is properly excluded from evidence on the ground of irrelevancy.

3. Same: Evidence § 42d—

An admission in the answer of the alleged agent that at the time in question he was a representative of his codefendant is incompetent as evidence against the codefendant, since it amounts to no more than a declaration of the alleged agent as to the fact of agency.

4. Automobiles § 24 *%*c: Principal and Agent § 13c—

Evidence that shortly after the accident, merchandise of defendant was found in the car of the alleged agent who stated that he was selling the articles for defendant, *held*properly excluded.

5. Automobiles § 24 *%*e—

Evidence tending to show a contract under the terms of which goods of defendant were consigned to an individual to be sold on a commission basis, that the individual owned and used his own automobile, that the defendant furnished no transportation and paid no expenses incident to the operation of the car and had no control over the individual or his employees, *held*
      *101insufficient to show the existence of the relationship of principal and agent between defendant and the individual, and nonsuit was proper upon the issue of *respondeat superior.*

Appeal by plaintiff from *Sharp, Special Judge,*April Term, 1951, ALAMANCE.

Civil action to recover damages for injuries resulting from tbe alleged negligent operation of an automobile.

M. T. Lindsey, who instituted tbis suit, is now dead and bis adminis-tratrix bas been properly made tbe plaintiff and bas adopted tbe complaint as filed. Tbe defendant, E. G. Leonard, bas also died since tbis action was commenced and tbe action as to bim bas abated, so tbat tbe action is now prosecuted by tbe administratrix of M. T. Lindsey against Burnette Home Supply Company.

Tbe pertinent facts are as follows: On 12 January, 1946, at about 4 o’clock p.m., plaintiff’s intestate was driving bis Chevrolet coupe automobile in a southerly direction along South Main Street in tbe town of Graham, North Carolina. At tbe same time, E. G. Leonard in bis Chevrolet automobile approached South Main Street from an easterly direction along Gilbreath Street. Upon entering South Main Street Leonard turned to tbe right so tbat bis automobile passed across tbe center line of South Main Street some 3 to 5 feet. At tbis moment tbe Lindsey car was within 10 or 15 feet of tbe Leonard ear and Lindsey pulled to tbe right and off tbe bard-surfaced portion of tbe highway, so tbat be traveled 15 or 20 feet on tbe muddy shoulder. When be pulled back on tbe highway, bis car skidded some 25 or 30 feet down the highway and went off tbe road into a ditch on tbe left. Lindsey was pinned under bis car and suffered injuries. Both cars were traveling about 20 to 25 miles per hour. Tbe cars did not make physical contact and Leonard was not seen to stop bis car at tbe scene of tbe accident. South Main Street and N. C. Highway 87 are identical and straight at tbe point of tbe accident.

Plaintiff offered to prove by a witness who went to Leonard’s home after tbe wreck at “about dusky dark” tbat witness saw a Chevrolet coach at Leonard’s home, tbe back part of which automobile was filled with blankets and bedspreads. Leonard stated to tbe witness tbat tbe merchandise in bis car belonged to Burnette Home Supply Company and tbat be was selling it for tbe Company. Tbis evidence was excluded by tbe court and plaintiff excepted.

Plaintiff then offered J. G. Burnette, one of tbe partners of Burnette Home Supply Company, who testified tbat tbe Company was engaged in selling general merchandise by bouse to bouse canvass from its place of business in Ealeigb; tbat Leonard was working for tbe Company on 12 January, 1946, but witness bad no record tbat be bad called upon customers on tbat date; tbat Leonard made a report to tbe Company at *102no specified time, but generally once a week; tbat be generally called upon bis customers by tbe use of a car in wbicb be carried samples and goods; tbat sometimes tbe salesmen would deliver at tbe time of tbe sale, but witness did not know wbetber Leonard delivered wben be made sales or just took orders; tbat sucb goods as Leonard bad in bis car on 12 January, 1946, were, according to witness, consigned to bim as samples and belonged to tbe Company until sold and paid for; tbat under tbe contract between Leonard and tbe Company, Leonard was not restricted to any territory. He could sell anywhere be desired. He was paid strictly on commission. Tbe Company bad no control over bis hours, nor a right to hire or fire bis employees. It bad no control over tbe manner in wbicb be made tbe sales, and made no requirements as to tbe number of days be should work in any given space of time. Leonard was authorized to sell tbe goods and to collect for tbe same. Tbe Company did not furnish bim any kind of transportation nor did it give directions as to tbe kind of transportation be was to use. Tbe Company did not own tbe car driven by Leonard, nor did it bear any part of tbe expense. Leonard was not allowed to charge anything connected with the expense of bis car to tbe Company.

At tbe close of plaintiff’s evidence, a nonsuit was entered from wbicb plaintiff excepted and appealed, assigning errors.

*J. Elmer Long, Thos. G. Garter, and Clarence Bo.ss for plaintiff, appellant.*

*Smith, Sapp, Moore •<& Smith for defendant, appellee.*

ValeNtiNE, J.

There is some evidence of negligence and of causative relation between tbe operation of the automobile by Leonard and tbe injury sustained by Lindsey, but tbe *quantum*of evidence on these points is not tbe pressing question here.

Plaintiff seeks to recover of tbe defendant, Burnette Home Supply Company, on tbe doctrine of *respondeat superior*for injuries sustained by her intestate in tbe accident. Tbe Company denies all tbe essential allegations of tbe complaint. Plaintiff is, therefore, put to proof of every fact necessary to support her cause of action. This raises tbe question, is there evidence sufficient to warrant a submission of tbe case to tbe jury on tbe theory of liability under tbe doctrine of *respondeat superior?*

Tbe record discloses tbat there was a contract between Leonard and tbe Company under tbe terms of wbicb goods were consigned to Leonard by tbe Company to be sold on a commission basis. Leonard owned and used bis own automobile. Tbe Company furnished no transportation, paid for no expenses incident to tbe operation of bis car, and bad no control over bim or bis employees. There is no evidence tending to show tbat at *the*
      *103time of the injury to plaintiff’s intestate Leonard was attempting to sell any goods for himself, the Company, or anybody else.

“The doctrine of *respondeat superior*applies only when the relation of master and servant, employer and employee, or principal and agent is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong, at the time and in respect to the very transaction out of which the injury arose. This is so well recognized that it may be said to be axiomatic. . . In *Linville v. Nissen,*162 N.C. 95, *77*S.E. 1096, the Court, quoting from *Durham v. Straus,*38 Pa. Sup. Ct. 621, said: 'The plaintiff must not only show that the person in charge was defendant’s servant, but the further fact that he was at the time engaged in the master’s business.’ . . . They settled the question in this jurisdiction. In every case, since decided, in which the question has been at issue, the Court has held that to charge the owner of a motor vehicle for the neglect or default of another there must be some evidence of the agency of the driver at the time and in respect to the transaction out of which the injury arose, and that proof of ownership alone is not sufficient to warrant or support an inference of such agency.” *Carter v. Motor Lines, 227*N.C. 193, 41 S.E. 2d 586.

Plaintiff based an exception upon the court’s refusal to receive from the answer of Burnette Home Supply Company the following language : “that during the times alleged in the complaint there was existing between E. G. Leonard and Burnette Home Supply Company a contract whereby the said E. G. Leonard was to sell goods and merchandise for Burnette Home Supply Company on a commission basis.” This language does not tend to prove the existence of a relationship of master and servant or employer and employee. *Hayes v. Elon College,*224 N.C. 11, 29 S.E. 2d 137. It is of no probative value to the plaintiff and therefore irrelevant and properly excluded.

Plaintiff also excepted to the court’s failure to allow her to introduce from the answer of Leonard this language: “It is admitted that at this time the defendant was the representative of his co-defendant Burnette Home Supply Company.” This was no more- than an effort to prove agency by a declaration of an alleged agent and was upon that ground properly excluded. *Hubbard v. R. R.,*203 N.C. 675, 166 S.E. 802; *Darlington v. Telegraph Co.,*127 N.C. 448, 37 S.E. 479; *Pangle v. Appalachian Hall,*190 N.C. 833, 131 S.E. 42; *Howell v. Harris,*220 N.C. 198, 16 S.E. 2d 829.

The plaintiff offered proof that the back seat of the Chevrolet automobile found at Leonard’s home about dusk dark on the day of the accident was filled with blankets and bedspreads and that Leonard there made the statement that he was selling the articles for the Company. This language was also properly excluded by the court. In *Tribble v. Swinson,*
      *104213 N.C. 550, 196 S.E. 820, there was evidence that the car involved in the collision was practically filled with sandwiches and all kinds of cakes, which were the products of the defendant, Swinson Food Products Company, but there was, as in the instant case, no evidence that the driver of the automobile at the time of the collision was the agent or servant or acting within the scope of the employment of the defendant sought to be charged. In the *Tribble case,*the Court said: “The evidence for the plaintiff fails to make out a *prima facie*case on the essential facts necessary under the doctrine of *respondeat superior*to hold the defendant Swinson responsible for the alleged negligent acts or tort of the defendant Yita.”

The essential facts necessary for the establishment of liability upon the doctrine here invoked have been stated in a long line of decisions, some of which are: *Linville v. Nissen, supra; Grier v. Grier,*192 N.C. 760, 135 S.E. 852; *Martin v. Bus Line,*197 N.C. 720, 150 S.E. 501; *Jeffrey v. Mfg. Co.,*197 N.C. 724, 150 S.E. 503; *Cole v. Funeral Home,*207 N.C. 271, 176 S.E. 553; *Van Landingham v. Sewing Machine Co.,*207 N.C. 355, 177 S.E. 126; *Shoemake v. Refining Co.,*208 N.C. 124, 179 S.E. 334; *Parrish v. Mfg. Co.,*211 N.C. 7, 188 S.E. 817; *Liverman v. Cline,*212 N.C. 43, 192 S.E. 849.

Measuring the plaintiff’s evidence by the standard laid down by this Court, plaintiff’s evidence was insufficient to take the case to the jury. The judgment of the court below is

Affirmed.