Opinion
Filed 27 February, 1957.
Automobiles 54f — Where action is instituted more than a year after the cause of action accrued, so that plaintiff does not have the benefit of G.S. 20-71.1, nonsuit is properly entered as to the alleged superior when there is no evidence that the driver was operating the truck in the course of his employment as an agent or employee of the superior.
APPEAL by plaintiff from Nettles, J., November Term 1956 of CHEROKEE.
Frank Ferguson and T. D. Bryson for plaintiff appellant.
McKeever Edwards, F. O. Christopher, and McKinley Edwards for defendant Dickey, appellee.
Plaintiff's intestate was struck and killed on 25 May 1954 by a motor vehicle owned by defendant Dickey and, at the time of the accident, operated by defendant Crisp. This action was begun 16 February 1956. At the conclusion of plaintiff's evidence defendant Dickey moved for nonsuit. The motion was allowed. Thereupon plaintiff submitted to a voluntary nonsuit as to the defendant Crisp and appealed.
Dickey's asserted liability is predicated on the theory of respondeat superior. There is no evidence to show that Crisp in moving the truck was the agent of Dickey and about his master's business. Plaintiff does not have the benefit of G.S. 20-71.1 as she waited more than one year after the cause of action accrued before instituting suit. The judgment is
Affirmed.