#### CORNELIA HAYES, Guardian of William McWhite Hayes, v. PINE STATE CREAMERY.

(Filed 31 January, 1928.)

1. Master and Servant — Liabilities for Injuries to Third Persons — Scope of Employment.

One employed by the owner of a dairy for the delivery of milk to customers by means of a wagon drawn by a horse, and collecting the empty bottles from the customers, is merely a hired man or a laborer for the performance of a simple and definite task, and when he is informed of an enforced rule of the owner that no one should be permitted by him to ride on the delivery wagon, and in violation thereof he permits a nine-year-old boy to ride thereon and help him in the performance of his duty, without the knowledge of the owner, and without the necessity, and a personal injury is inflicted on the boy by reason thereof, and through negligence: *Held,*it was without the scope of the employment of the driver to allow the boy to ride, and the owner is not responsible for the damages.

2. Same.

The employer may not escape liability for the personal injury of a nine-year-old boy caused by an employed driver of a milk wagon in permitting the boy to ride on the wagon in violation of his rules, previously made known *to the*driver, when it may reasonably be inferred that-the rule had been abrogated by his knowledge of its habitual violation by his drivers. •

3. Trials — Questions for Jury.

*Held,*whether an employer had waived his rule that his employees not permit children to ride on a milk delivery wagon, by knowing that an employee habitually broke the rule is, upon proper evidence, a question for the determination of the jury.

4. Trials — Instructions—Questions for Jury.

An instruction is erroneous which deprives the defendant, in a personal injury case, of the benefit of its rule prohibiting the driver of its milk wagon from allowing children to ride thereon, arising under the evidence *114of the case, upon the question of whether the driver was acting within the scope of his employment when the plaintiff was injured by the driver’s alleged negligent act.

5. Negligence — Pi-oximate Cause — Evidence.

Evidence of a city ordinance as to the manner of driving a milk wagon upon the street is erroneously admitted upon the trial when its application to the facts of the controversy has not been shown.

Civil actioN, before *Devin, J.,*at May Term, 1927, of Wake.

Tbe plaintiff is tbe guardian of William McWbite Hayes, ber son, wbo at tbe time of bis injury was about nine years of age.

Tbe defendant is a corporation engaged in tbe business of selling and delivering milk and other dairy products to its customers in Raleigb by means of delivery wagons. On 30 December, 1925, tbe defendant bad in its employ a man named Eetner, wbo was, employed for tbe purpose of driving a borso-drawn delivery wagon for tbe purpose of delivering milk to tbe customers of defendant on eacb morning and taking up any empty milk bottles in tbe possession of customers belonging to tbe defendant and returning tbem to tbe plant.

Tbe narrative of tbe injury to William Hayes is as follows: “He (driver) bad a one-borse wágon, tbe usual kind of milk wagon. Tbey kept tbe milk in bottles and in crates in tbe wagon. I did some work for bim. I do not know bow I came to do work for bim; sometimes be would bave bottles and I would belp carry tbem. Wbat be would not take I would carry and put in tbe wagon. I would get tbem from tbe bouses. Sometimes I would ride on tbe wagon. Mr. Eetner did not say anything to me about doing tbe work. I asked bim if I could ride with bim, and be said yes. I do not know bow many times I rode with bim. I went more than one time, about an hour eacb day. I think I went with bim about a month. Sometimes be would give me milk, and sometimes a nickel. He was delivering milk. He carried it around and put it on people’s porches. . . . He would go to one bouse and I would go to tbe next. Sometimes we would both be on tbe same side of tbe street and sometimes on opposite sides. ... I left borne on tbe day I got hurt about 8 :30 in tbe morning. I came up with Mr- Eetner at Mr. Privett’s store. I did not bave an agreement to meet bim there. I do not remember wbat be said that morning. I did not get in tbe wagon. . . . I went about one block before I began to deliver milk. No one would drive tbe wagon. Tbe horse would go by himself. Tbe reins would be up in tbe wagon laying down on empty bottles or crates. No one was driving tbe wagon at tbe particular time I got hurt. I bad just come from a bouse with some empty bottles, and when I went to get in I fell. Mr. Eetner was in tbe wagon. He was doing nothing. He did not bave bold of tbe lines. There is a door to tbe wagon. There is no *115step. There is a platform. . . . The wagon was moving. I do not know whether Mr. Fetner knew that I was there or not. He was in the wagon before I went to the house. He handed milk to me. I got out of the wagon while it was moving. Mr. Fetner did not say anything to me when he handed the milk bottles to me. I had delivered milk there before. When I came back the wagon was moving. I put my foot on the wagon and fell. I fell back toward the wheel. My leg was broken. The wheel ran over my leg. ... I do not remember that any one else ever rode on the wagon with him and me. No other boys rode on the wagon. I never saw any other boys on it. Mr. Fetner never warned me against getting in the wagon when it was moving. He got in it when it was moving, too. I don’t know how fast the wagon was going when I tried to get in. The horse was walking fast. I don’t remember how much milk I delivered that morning.”

Another witness for plaintiff testified: “I do not recall whether I saw Mr. Fetner allow boys to get on his wagon as he was delivering milk, but I saw boys on the wagon occasionally. I did not see boys assisting him in delivering milk, but I have seen them with others. I had seen boys delivering milk for about one year. . . . From time to time I saw boys riding on th,e wagon with the driver. They were not all delivering milk to houses in my vicinity. Mr. Fetner had been driving the wagon four or five months before the accident to this boy.”

The defendant offered evidence to the effect that it had duly passed a rule instructing all drivers not to allow children or grown persons to be on the wagons except the drivers, and also forbidding drivers to permit children to work in delivering milk or at the plant, and that Mr. Fetner, the driver of the wagon at the time of plaintiff’s injury, was duly informed of the adoption of this rule at least two months before the injury happened. The evidence of defendant further tended to show that one man could fully handle the work on that route, and it did not require more than one person to do it, and that no official of the company had received any notice whatever that Fetner or any other driver was employing boys to assist in delivering milk or permitting them to ride on the wagons.

The issues and answers of the jury thereto were as follows:

(1) "Was plaintiff’s ward injured by the negligence of defendant as alleged ? Answer: Yes.

(2) If so, what damages is plaintiff entitled to recover by reason thereof? Answer: $8,500.

From the judgment defendant appealed, assigning errors.

*Bart M. Gatlin and W. F. Evans for plaintiff.*

*Ruark & Fletcher for defendant.*

*116Brogden, J.

Is the owner of a milk wagon liable for the negligence of the driver thereof, causing injury to a nine-year-old boy, employed by the driver to assist him, or permitted to ride on the wagon or get in and out of it, all in violation of the express rules duly prescribed by the owner ?

The judge charged the jury as follows: “So, if upon the testimony you find from the evidence and by its greater weight that on the occasion alleged, 30 December, 1925, the defendant, Pine State Creamery, was engaged in selling and delivering milk from a milk wagon drawn by a horse driven by the defendant’s servant, employee and driver, and that the defendant’s said driver requested or permitted and used the assistance of the plaintiff, a boy between 9 and 10 years of age in delivering bottles of milk and collecting milk bottles and putting them back in tbe wagon, and you find from the evidence and by its greater weight that on said date while so engaged and while tbe plaintiff was attempting to put an empty bottle back in the wagon, and tbe wagon was in motion, and the plaintiff fell under the wheel of the wagon and was run over and injured, and you find that the defendant’s driver was in the wagon at the time and saw, or by the exercise of due care could have seen what the plaintiff was attempting to do and failed by the exercise of due care to avoid it, and you find by tbe greater weight of tbe evidence that tbe defendant’s said driver was at tbe time acting within tbe scope of bis employment and was engaged in doing work in furtherance of defendant’s business, and that bis acts in relation to these facts were such as were incident to tbe performancé of tbe duties entrusted to bim by tbe defendant, and you find from tbe evidence and by its greater weight that tbe defendant failed to exercise due care with respect to these circumstances to avoid injury to tbe plaintiff, and that such failure on tbe defendant’s part was tbe proximate cause of tbe plaintiff’s injury, you will answer tbe first issue yes, otherwise answer it no.”

The driver of the milk wagon was employed for the performance of a simple and definite task. He was merely a hired man or a laborer and no more. The undisputed evidence on behalf of defendant is to the effect that the driver was expressly forbidden, by the rules of the company, to employ boys or to permit them to ride on the wagon. Was the driver then acting within the scope of bis employment when be permitted the plaintiff to assist bim or to ride upon the wagon? An employer has the right to prescribe reasonable rules and regulations to be observed by bis employees for the safe and prudent operation of bis business. So long as these rules are in force the employee, certainly, if no more than a hired man or laborer, is not acting within the scope of bis employment when he undertakes, in direct violation of such rules, to employ additional help or assistance in the performance of bis duties, *117unless of course additional belp or assistance is sucb an incident of the duty to be performed as to fairly imply that the employer authorized such employment. Driving a one-horse wagon and placing a bottle of milk upon a customer’s porch and returning any empty milk bottle to the wagon is not. such a duty as to ordinarily require, as a reasonable or necessary incident thereto, the employment of additional help or assistance.

The principle of law involved is thus expressed by *Hoke, J.,*in *Butner v. Lumber Co.,*180 N. C., 612: “So far as appears, he had no authority to invite any one into the mill contrary to the rules of the company, nor did he have any right to dispose of these edgings to outsiders, and in such case our decisions are to the effect that liability may not be imputed to the owners and proprietors by reason of his speech or conduct on this occasion, the same being entirely outside of the course and scope of his employment.”

But, was the rule of the company forbidding drivers to employ or to permit boys to ride upon the wagon in force at the time of the injury ? The test for determining whether or not a rule is in force is thus declared in *Fry v. Utilities Co.,*183 N. C., 281: “It has been held generally that if a rule is made for the safety of the servant or others, but its customary violation has continued so long that the master either knew of it, or could by the exercise of ordinary care have found it out and acquiesced in it, he is presumed to have consented to its repeal or to have waived obedience to it. . . . If such orders were given, the plaintiff surely was entitled to show that it had been constantly violated for a long time, with the knowledge of the drivers and those in charge of the wagon, from which the jury could well infer that the owner of the wagon had notice of its nonobservance, and that it was an order of the company more honored in the breach than in the observance, and, in legal contemplation, it had been abrogated, or at least waived.”

The decisions are to the effect that if the rule has been openly, constantly and habitually violated for such a length of time that the employer in the exercise of ordinary care and diligence should have been apprised and informed of its nonobservance, then the rule is deemed to be waived or abrogated and no longer protects the employer from liability arising from the unauthorized acts of the employee. Whether or not the rule has been thus abrogated or waived is ordinarily a question for the jury.

The decisions from other jurisdictions present a diversity of opinion. Many of the leading authorities upon the subject are assembled in the opinion, concurring opinion and dissenting opinion in the case of *Higbee Co. v. Jackson,*128 N. E., 61. In that ease the Supreme Court of Ohio holds, as stated in the first head-note that “where an employee, *118to whom the owner has committed the operation of an auto truck in the owner’s business, permits an infant to ride on the truck in violation of his instructions, and the infant is injured by the wanton and wilful conduct of the employee, while in the course and in the scope of bis employment, the owner is responsible.” Tbe theory upon which the opinion rests is that an infant who climbs upon a truck in violation of the orders or rules of the employer is a trespasser; and, although a trespasser, the employer is liable for the wilful and wanton negligence of bis servant, the driver. Tbe dissenting opinion asserts that the act of a driver in inviting a third party to ride upon a truck or wagon in violation of' the express orders of the owner is entirely outside the scope of employment of the driver, and therefore imposes no liability upon the owner, citing among other cases *Dover v. Mfg. Co.,*157 N. C., 324.

The New York Court of Appeals, in tbe case of *Goldberg v. Borden’s Condensed Milk Co.,*125 N. E., p. 807, holds: “Where a„driver, acting contrary to express orders, invites a boy to ride on bis wagon, which is started so suddenly that the boy is thrown off and injured, the employer is not liable for the injuries.” The reason assigned for this bolding is that the act of the driver in inviting the boy to ride, in violation of the rules of the company, was wholly outside the scope of the employment of the driver. To the same effect is *Rolfe v. Hewitt,*125 N. E., 804. It is to be observed, however, that in the *Goldberg case, supra,*the question of habitual violation of the rule of the company was not mentioned or discussed, if such was a fact.

The whole proposition comes to this: If the driver was a mere laborer 'or hired man, employed to perform a simple and specific task, not reasonably requiring assistance as an incident to the performance of the task, and reasonably rules or regulations bad been duly adopted by the owner and communicated to the driver, forbidding the employment of boys of tender age, and forbidding the driver to permit such boys to ride upon or get in or out of the wagon, then, if such rule was in force at the time of the injury, the plaintiff is not entitled to recover, because in so doing, under such circumstances, the driver was acting wholly without the scope of bis. employment. But if such rule bad been expressly waived or abrogated, or if the rule bad been openly, constantly or habitually violated for such length of time, that the employer in the exercise of ordinary care and diligence, knew or should have known of such habitual nonobservance, then the rule is deemed by law to have been waived or abrogated, and in such event the owner becomes liable for such negligence on the part of the driver.

Tbe instruction complained of was correct as an abstract proposition of law, but it permitted the jury to determine whether or not the driver was acting within the scope of bis employment without giving the defendant *119the benefit of the rule wbicb it bad adopted to govern the conduct of its drivers with reference to employing the plaintiff or permitting bim to be on or about the wagon, and the exception of the defendant to sucb instruction is sustained.

Tbe defendant also excepted to tbe introduction of an ordinance of tbe city of Ealeigb witb reference to leaving any borse-drawn vehicle standing unattended. Tbe exception to tbe introduction of tbis ordinance is sustained for tbe reason tbat tbere is no evidence in tbe present record warranting tbe application of tbe ordinance.

New trial.