
    JOHN C. WALKER v. T. R. MANSON, MRS. ATTRICE K. MANSON and MRS. ALMA KERNODLE. MRS. N. L. WALKER v. T. R. MANSON, MRS. ATTRICE K. MANSON and MRS. ALMA KERNODLE. MRS. A. CLAY MURRAY v. T. R. MANSON, MRS. ATTRICE K. MANSON and MRS. ALMA KERNODLE.
    (Filed 8 January, 1943.)
    1. Master and Servant § 31c: Automobiles § 24a—
    The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged at the time of, and in respect to, the very transaction out of which the injury arose, and general employment alone is not sufficient to impose liability.
    2. Master and Servant § 21c; Automobiles §§ 24a, 24c—
    In an action for damages on account of injuries sustained by plaintiff in an automobile collision, evidence that defendant M., a son-in-law of defendant K., was hauling a cow and calf belonging to K., in a truck, when the truck collided with the car in which plaintiffs were riding, causing injury, without any evidence of the ownership of the truck or that K. exercised any control over the same, is insufficient and demurrer thereto was properly sustained.
    Appeal by defendant, Mrs. Alma Kernodle, from Ervin, S-pecial Judge, at May Term, 1942, of AlamaNCE.
    Three civil actions by consent consolidated for the purpose of trial. The actions are to recover damages for injuries to the person and property of the plaintiffs alleged to have been negligently inflicted by the defendants in causing a collision between a Dodge Tudor automobile driven by the plaintiff John 0. Walker and a Ford pickup truck driven by the defendant T. E. Manson, on a public highway in Alamance County, on 24 November, 1941.
    Demurrer to the evidence as to the defendant Mrs. Attrice K. Manson was sustained, and the cases dismissed as to her, from which action of the court no appeal was taken.
    Demurrers to the evidence as to the defendants T. E. Manson and Mrs. Alma Kernodle were overruled, and exception to such action was preserved by the defendant, Mrs. Kernodle.
    The jury answered the issues in favor of each of the plaintiffs and against the defendants, T. E. Manson and Mrs. Alma Kernodle. From judgment predicated on the verdict, the defendant, Mrs. Alma Kernodle, appealed to tbe Supreme Court, assigning as error, inter alia, tbe refusal of tbe court to sustain ber demurrer to tbe evidence duly lodged and renewed under C. S., 567.
    
      Barnie P. Jones and Thomas 0. Garter for plaintiffs, appellees.
    
    
      Louis G. Allen and Long, Long ■& Barrett for Mrs. Alma Kernodle, appellant.
    
   Schenck, J.

Tbe first issue submitted to tbe jury read: “1. Was tbe defendant, T. R. Manson, at tbe time of and in respect to tbe transaction out of wbicb tbe plaintiffs’ alleged injuries arose, acting witbin tbe scope of bis employment as a servant of tbe defendant, Mrs. Alma Kernodle, as alleged in tbe complaint?”

Tbe appealing defendant, Mrs. Kernodle, contends tbat there' was insufficient evidence to justify tbe submission of tbis issue, and presents ber contention under ber exception to tbe refusal of tbe court to sustain ber demurrer to tbe evidence. Tbe plaintiffs contend to tbe contrary.. So tbe appeal poses but tbe single question: Was there more than a scintilla of evidence tbat tbe defendant T. B. Manson, tbe driver of tbe pickup truck, was tbe agent and employee of tbe appealing defendant, Mrs. Kernodle, and acting within tbe scope of bis agency and employment at tbe time tbe collision involved occurred? We are of tbe opinion, and so bold, tbat tbe answer to tbe question posed is in tbe negative.

Taking tbe evidence most favorable to tbe plaintiffs bearing upon tbe question posed, it tends to show tbat tbe appealing defendant, Mrs. Alma Kernodle, owned a farm in Alamance County, tbat she rented tbe farm in 1941 to one Fuller on shares, tbat T. B. Manson, ber son-in-law and codefendant, negotiated tbe rental contract with Fuller; tbat Manson “looked after tbe farm for ber”; tbat Fuller moved on tbe farm on 1 January, 1941, and tbat Manson brought a cow and calf there in March, 1941; that tbe cow and calf were owned by Mrs. Kernodle; tbat Manson took tbe cow and calf away in a Ford pickup truck about 3 :30 o’clock p.m., on 24 November, 1941; and tbat tbe cow and calf were in tbe truck when it collided with tbe automobile driven by the plaintiff,. John C. Walker.

There is no evidence as to why tbe defendant T. B. Manson was taking tbe cow and calf away from tbe farm, or as to where be was taking-them; nor is there any evidence tbat tbe appealing defendant, Mrs. Alma Kernodle, directed, requested, or authorized Manson to haul tbe cow and calf away from tbe farm. Tbe record is absolutely silent as to tbe destination or purpose of tbe removal of tbe cow and calf. While there is evidence tbat Mrs. Kernodle bad expressed a desire to sell the cow, there-is no evidence tbat she did sell ber or authorized ber removal. There is-likewise no evidence that the appealing defendant exercised any control over the truck transporting the cow and calf, or directed in any way the manner and way of its operation.

There is no evidence as to who owned the pickup truck driven by T. E. Manson, involved in the collision. However, it does appear in the “statement of the case on appeal,” which is agreed to by the parties, that the plaintiff John C. Walker “was in a collision with the Ford pickup truck of the defendant, T. E. Manson,” and the evidence tends to show that T. E. Manson was frequently seen to drive the truck. There is no evidence that Mrs. Kernodle, or any person other than the driver thereof, was in the pickup truck at the time of the collision. The evidence tends to show that T. E. Manson was alone while driving the truck on which the cow and calf were loaded.

The plaintiffs seek to hold the appealing defendant, Mrs. Alma Ker-nodle, liable under the doctrine of respondeat superior.

“The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person so sought to be charged at the time of and in respect to the very transaction out of which the injury arose. . . . Proof of general employment alone is not sufficient to impose liability. ... It must be made to appear that the particular act in which the employee was at the time engaged was within the scope of his employment and was being performed in the furtherance of his master’s business. . . . Liability of the master is not to be determined by the extent of the authority of the agent, but by the purpose of the act in which the agent was engaged at the time. . . .” Smith v. Moore, 220 N. C., 165, 16 S. E. (2d), 701, and cases there cited.

“This 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.” Creech v. Linen Service Corp., 219 N. C., 457, 14 S. E. (2d), 408.

Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126, is in many respects similar to the case at bar. In that case the Court said: “If we consider, with the admissions, only the evidence offered by the plaintiff upon the issue as to whether the defendant Eussell was acting within the scope of his employment and in the furtherance of the business of the Singer Sewing Machine Company at the time and place alleged, we have, and no more, the admission that Eussell was employed by his codefendant and was, at said time and place, driving an automobile which he himself owned and used when occasion required in the business of the codefendant; and evidence tending to show that at said time and place there was on the rear of said automobile a Singer sewing machine. We do not think these admissions and evidence make out a prima facie ease upon this issue.”

The doctrine enunciated in the foregoing cases is reaffirmed in a per curiam opinion in Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820, where many authorities are collected and cited.

There being no evidence in the record tending to show that the appealing defendant, Mrs. Alma Kernodle, had any control of the pickup truck involved in the collision and driven by T. R. Manson, it would appear that under the authority of Wilkie v. Stancil, 196 N. C., 794, 147 S. E., 296, her demurrer to the evidence should have been sustained.

For the reasons given we are of the opinion, and so hold, that the appealing defendant, Mrs. Alma Kernodle, was entitled to have her demurrer to the evidence sustained and the actions against her dismissed, and it is accordingly so ordered.

Reversed.  