CUSTOM CRAFT FURNITURE, INC., and PENNSYLVANIA LUMBERMENS MUTUAL INSURANCE COMPANY v. FRED L. GOODMAN, t/a J. L. GOODMAN & SON, 263 N.C. 220

DeNNY, C.J. The appellants contend that Craft’s loss was occasioned by the fact that the defendant sent an inexperienced and incompetent welder to its plant to perform the services requested on 19 May 1962. In our opinion, there is no merit to this contention. There is not a scintilla of evidence on this record tending to show that Craig did not remove the four bolts that held the compressor to the concrete floor in the compressor room in exactly the manner Craft’s foreman expected the work to be performed.

Nor is there any evidence tending to show that the manner and method being used in cutting the holes in the base of the compressor at the time the fire started, was not the usual and proper method for doing such work. The plaintiff Craft suffered its damages not as the result of the method used in undertaking to do the work, but from the fact that the work was undertaken at a place and in an area that Craft’s foreman and at least several of the employees working under him, knew to be an extremely dangerous fire hazard; in fact, so dangerous, that Craft prohibited smoking in the area.

Yet, notwithstanding this fact, Craft’s foreman and employees, without warning Craig of the fire hazard, permitted him to proceed to use an acetylene torch to cut the holes in the base of the compressor frame. Furthermore, the employees helped Craig move the compressor base to the rear of the truck so that the portion thereof where the holes were to be cut, extended over the rear end of the truck bed. After the compressor base had been so placed, the foreman marked the places where he wanted the holes cut.

The defendant contends that he should not be held liable for acts done pursuant to the direction of Craft’s foreman, which acts were done without the knowledge or consent of the defendant. In the case of Snow v. DeButts, 212 N.C. 120, 193 S.E. 224, this Court said: “A master cannot be held liable for the unauthorized act of a servant on the ground that the servant did the act with the intent to benefit or serve the master. Daniel v. R. R., 136 N.C. 517 (48 S.E. 816); Marlowe v.

Bland, 154 N.C. 140 (69 S.E. 752).” General employment of an agent or a servant is not necessarily a sufficient basis of liability to third persons when the damages result from directions or instructions given by someone other than the principal or master. Shapiro v. Winston-Salem, 212 N.C. 751, 194 S.E. 479; Wadford v. Gregory Chandler Co., 213 N.C. 802, 196 S.E. 815.

In 57 C.J.S., Master and Servant, § 566, page 292, it is said: “If a hired vehicle is used for a purpose different from that stipulated in the contract, the driver is not the agent of the owner in using it at the direction of the hirer.” In the case of Jackson v. Joyner, 236 N.C. 259, 72 S.E. 2d 589, it is said: “* * * (W)here a servant has two masters, a general and special one, the latter, if having the power of immediate direction and control is the one responsible for the servant’s negligence. 35 Am.

Jur., Master and Servant, Sec. 541.” In our opinion, it is unnecessary to determine whether or not the above position of the defendant is controlling on this appeal. Be that as it may, we have reached the conclusion that when all the evidence adduced in the trial below is considered in the light most favorable to the plaintiffs, it fails to establish actionable negligence on the part of the defendant.

On the other hand, if, for the sake of argument, it should be conceded that the defendant was negligent, the contributory negligence of Craft’s agents, servants and employees is so clearly established by the evidence as to prevent recovery on behalf of these plaintiffs. The judgment of the court below is Affirmed.