Appeal
from Superior Court, Mecklenburg County; Cowper, Special
Judge.
Action
by John Ben Jackson, by his next friend, Goebel Porter
against George F. Scheiber and another. From an adverse
judgment, plaintiff appeals.
Affirmed.
Master
is not ordinarily liable for willful and intentional injury
inflicted by servant to vent his spite and hate, although on
his master's business.
This is
an action for actionable negligence, brought by plaintiff
against defendants, alleging damage. The defendants denied
the material allegations of the complaint and set up the plea
of contributory negligence. The evidence on the part of
plaintiff was to the effect that John Ben Jackson, the
plaintiff, was struck by a Chrysler automobile driven by
defendant, Robert Pearson, on South Alexander street, between
Hill and Vance streets, in the city of Charlotte, N. C
about 6:30 o'clock on April 14, 1934. It was daylight.
Pearson stopped the automobile in front of his house on the
west side of South Alexander street, the automobile entering
from East Hill street, and went into his house. Plaintiff was
facing east sitting on an oil can, about 2 1/2 feet west of
the drain.
Grady
James, a witness for plaintiff, testified, in part
"After Robert Pearson backed up to East Hill Street he
started forward. I did not pay any more attention to him
until I heard a 'zoom.' I saw the car as it came down
Hill Street. When it got four or five yards from Ben, it cut
to its left straight towards Ben. I called to Ben and threw
my hand out towards him. About that time the front bumper of
the car caught Ben. After the car passed it threw up a cloud
of dust. Pearson did not blow his horn as he came towards us.
The next time I saw Ben he was in East Vance Street. He was
lying on his face. Ben was about one block from where he was
struck. I ran down there. When I got there Pearson was gone.
* * * South Alexander Street at that place is dirt. It is
about 18 feet wide. There was room for two cars to pass to
the West of John Ben when he was sitting on the oil
can."
Lloyd
Thomas, a witness for plaintiff testified, in part
"Pearson's house is on the West side of the street.
He (Pearson) came out of the house and backed North on
Alexander Street. He backed up pretty speedy about 15 or 20
miles per hour. He stopped at Hill Street. When Pearson
backed North on Alexander Street, John Ben was on the East
side of the street sitting on an oil can. John Ben was
sitting about two and one-half feet West of a little drain
and about fifty feet South of where Pearson stopped the car
in Hill Street. Robert Pearson started the car forward and
drove South on South Alexander Street. He was going 20 or 25
miles per hour when he ran into John Ben who was still
sitting on the oil can. The right part of the front bumper
hit John Ben and dragged him about one block."
Bradley
Lee, a witness for plaintiff, testified, in part: "I saw
the car start off at full speed. It went straight until it
got almost to John Ben. At that time it cut towards John Ben
and hit him with the front bumper. If the car had gone
straight, it would have missed John Ben about two and
one-half feet. The car passed me with John Ben on the fender.
I went down to where John Ben was lying. He had his
face down in Vance Street, East of South Alexander
Street."
John
Ben Jackson, the plaintiff, testified, in part:
"My
house is on the West side of South Alexander Street, and I
crossed over to the East side and sat down on an oil can.
That can was in the grass over between the drain and the
fence. The fence is on the East side of the grass. The
drain is on the West side of the grass. While I was sitting
there I saw Robert Pearson. I saw him get in the car and
back up the street. He got in the car down at his house,
No. 816. That was South of where I was sitting. That was
about as far as from where I am now to the second Radiator
in the courthouse. After Robert Pearson got in the car he
backed up to the street. He was driving a Chrysler car. He
backed clean up to Hill Street, passing by me. When he got
to Hill Street the car stopped and started down on S.
Alexander Street again, the same street he was on when he
was backing. I did not watch the car until it struck me. I
was sitting with my back turned to Grady James and was
talking back over my shoulder. I first whirled around with
my face to him. I was not looking at the car when it struck
me. I was talking to Grady James. Between the time Robert
Pearson backed the Chrysler car by me until I was struck, I
had not changed my position except to turn on the can. The
can had not moved. I was sitting on the can both times. I
do not remember being dropped from the automobile in Vance
Street. The first thing I knew after the accident, my
mother and brother was in the room with me in the Good
Samaritan Hospital. It was Tuesday evening when I first
woke up. I don't remember nothing between the Saturday
I was struck and Tuesday. When I woke up I was hurting all
over. My face and head were hurting and both my wrists. I
could not see. * * *"
Cross-examination:
"I
was between the drain and the fence in the grass plot. I
was not sitting in the traveled part of the highway. There
was more than twenty feet between the drain and the curb on
the West side and there was more than twenty feet between
me and the curb on the West side. There was nothing in the
street except this automobile. There were no other passing
vehicles. I saw Pearson as he backed by me. * * * In order
to hit me he had to get some part of his automobile over to
the East of the drain out of the roadway, and at that time
he had over twenty feet of clear roadway. * * * Pearson and
I had had some difficulty before this. I had shot at him. I
don't remember the exact date. It was in March and this
happened in April. He is the only person I have shot at. I
was in my back yard when I shot at him. I can't
remember the date. I have said that the last time I had
seen Pearson before I got hurt that he told me he was going
to get me if it was the last thing he ever did. I don't
know how long that was before he hit me. * * *"
Question by plaintiff's counsel: "You have
testified about shooting the defendant Robert Pearson. Just
explain why you shot at him." Plaintiff explained the
quarrel.
Recross-examination:
"Q.
The question I asked you is, Haven't you stated that
Pearson ran into you on purpose? Ans: Yes, sir.
Q. And
that's the statement you make now, isn't it? Ans: Yes
sir. As to whether or not Pearson ever said anything to me
about whether he ran into me on purpose or not, he did. He
said where I could hear it that he intended to run over me
and would do it again if he had the chance. I heard him say
that one night when we was at a little party."
George
F. Scheiber, the defendant, was examined by plaintiff, and
testified in part: "On April 14, 1934, in the afternoon
I instructed Pearson to go on an errand for me. I told him to
go up town in my car and I told him to go to Wright's
Cleaning place, which is on South Tryon Street adjacent to
the Catholic Church. He took my car and left with it on that
trip. I told him to get a suit of clothes for me from
Wright's Cleaners establishment and bring it back to the
Addison Apartments. I didn't tell him exactly what
streets to drive over or how to go. I just told him to make
that trip for me. * * * When my car was brought home by
Pearson immediately after the John Ben Jackson accident it
had my suit in it and I got my suit. * * * As to whether I
told him to go home at all, it would hardly be in my scope to
tell him to go home at all. * * * I think he went in the car.
When the reasons were justifiable I allowed him to go to that
community in the car." The witness further testified
that heretofore when Pearson went out with his car he allowed
him to go to his house for articles
of clothing, etc. It was in evidence that on the day in
question he went to his home to tell his mother to have him a
clean shirt for Sunday.
Edith
Thomason, a reporter who took the testimony of Robert Pearson
in the recorder's court, testified, in part:
"In
that Court he testified: Didn't you hit this boy and
carry him down to the corner? Ans: Yes sir. I didn't
know I hit him.
Q. You
knew this boy was sitting up there on this oil can? Ans: I
don't know what kind of a can he was sitting on. He was
sitting six feet in the street. (To the foregoing and like
questions the defendants objected. Objections sustained as to
defendant Scheiber. Plaintiff excepted.)
By the
Court: The Court understands that you do not introduce any of
this evidence as it bears on the issue of negligence against
Pearson?
By Mr.
Gover: Not against anybody, solely for the purpose of showing
any bearing it may have on the question of whether this
accident was intentionally inflicted."
The
court below allowed the case to be submitted to the jury on
the usual issues as to defendant Pearson. The jury rendered a
verdict for plaintiff and assessed the damages at $300. The
defendant, Scheiber, introduced no evidence, and the court
below sustained a motion of nonsuit as to him. The plaintiff
excepted, assigned error and appealed to the Supreme Court.
The plaintiff made numerous exceptions and assignments of
error, and appealed to the Supreme Court.
