Key v. Home Chair Co. Inc

• Decision Date: 10 December 1930
• Docket Number: No. 572.,572.
• Citation: 199 N.C. 794,156 S.E. 135
• Parties: KEY. v. HOME CHAIR CO., Inc.
• Court: North Carolina Supreme Court

156 S.E. 135

(199 N. C. 794)

KEY.

v.HOME CHAIR CO., Inc.

No. 572.

Supreme Court of North Carolina.

Dec. 10, 1930.

Even after answering in trial court or in Supreme Court, defendant may demur ore tenus.

Appeal from Superior Court, Wilkes County; Harding, Judge.

Action by Claude Key, by his next friend, D. E. Key, against the Home Chair Company, Inc.From a judgment dismissing the action, plaintiff appeals.

Affirmed.

The action was brought by Claude Key, a minor, by his next friend, D. E. Key, to recover damages sustained by Claude Key in the sum of $5,000, alleged to have been suffered by the plaintiff on account of the negligence of the defendant company while the said plaintiff was employed by the defendant corporation.The case came on to be heard, and, after the jury was chosen and impaneled, and before evidence was introduced, the defendant company, through its counsel, demurred ore tenus to the complaint, on the ground that the complaint did not state a cause of action, which motion was sustained by the court, and judgment entered dismissing said action and taxing the plaintiff with the cost, from which judgment the plaintiff excepted, assigned error, and appealed to the Supreme Court.

The material allegations of the complaint are as follows: "That the plaintiff was employed by the defendant company in the Fall of 1926, and worked for said company until January 30, 1929; that when he was employed by the defendant company, he was put on a job of placing bottoms in chairs by means of a hand screw driver, said screws being used to fasten the bottoms in said chairs; that the apparatus on which the chairs were placed, in order to fasten the bottom to said chairs, was an old time low bench or shelf, and in order to fasten the screws in the bottom of the chairs, this plaintiff was forced to stand in a stooping position, using a hand screw driver with his right hand.That during the year 1928, this plaintiff, on account of standing in the stooping position, ' which he was required to do to perform his duties, suffered an injury to his right hip and side, the ligaments and nerves being badly strained and injured in said hip, and making it almost impossible for the plaintiff to walk, and from which injuries he has suffered great and ex-cruciating pain in body and in mind, and continues to suffer great pain."

Further allegation was made that Claude Key notified defendant"that he did not have suitable and sufficient tools and appliances with which to do the work on this job, and notwithstanding this notice, the defendant company continued to have him work on said job, until said injuries became so grave and serious that it was necessary for the plaintiff to go to the hospital.* * * That the defendant company was negligent in that, it did not furnish tools and appliances in common use to perform the work which this plaintiff was required to perform, and the said defendant company knew or should have known, that the tools and appliances furnished to this plaintiff were not such tools and appliances as are in common use, and were not modern nor suitable tools with which...