No. 534.

62 S.E.2d 540 (1950)

233 N.C. 42

KING v. MOTLEY et al.

Supreme Court of North Carolina.

December 13, 1950.

Attorney(s) appearing for the Case

Shannonhouse, Bell & Horn, Charlotte, Ray W. Bradley, Jr., Charlotte, for plaintiff appellee.

Helms & Mulliss, Charlotte, for defendant appellant.

WINBORNE, Justice.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the 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, 763. See also McCampbell v. Valdese Building & Loan Ass'n, 231 N.C. 647, 58 S.E.2d 617, and cases there cited.

The statute G.S. § 1-151 requires that "In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties." And the decisions of this Court, applying the provisions of this statute, hold that every reasonable intendment is to be made in favor of the pleader. A pleading must be fatally defective before it will be rejected as insufficient. See McCampbell v. Valdese Building & Loan Ass'n, supra, and cases cited.

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

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

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

And it is elementary that the master is liable for the acts of his servant and the principal for the acts of his agent, whether malicious or negligent, which result in injury to third persons, when the servant or agent is acting within the line of his duty and exercising the functions of his employment. Roberts v. Southern R. Co., 143 N.C. 176, 55 S.E. 509, 8 L.R.A., N.S., 798; Dickerson v. Atlantic Refining Co., 201 N.C. 90, 159 S.E. 446, and numerous other cases.

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

"A master is civilly liable for an assault and battery by his servant on a 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, N.C. 61 S.E.2d 903.

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



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