McCune v. Rhodes-Rhyne Mfg. Co.

• Decision Date: 10 April 1940
• Docket Number: 314.
• Parties: McCUNE v. RHODES-RHYNE MFG. CO. et al.
• Court: North Carolina Supreme Court

8 S.E.2d 219

217 N.C. 351

McCUNE v. RHODES-RHYNE MFG. CO. et al.

No. 314.

Supreme Court of North Carolina

April 10, 1940

Civil action to recover compensatory and punitive damages for alleged malicious and wilful and wanton assault.

While plaintiff, in his complaint, sets forth allegations which he denominates as "his first cause of action" in which he prays actual damages, and "a second cause of action" in which he demands punitive damages, it is agreed by counsel for both the plaintiff and defendants, in stipulation filed as a part of the case on appeal, with the approval of the trial judge, that only one cause of action is alleged.

Plaintiff alleges substantially these facts: That on March 7, 1939 defendant Rhodes-Rhyne Manufacturing Company, a corporation of this State with its principal place of business in Lincoln County, was operating a cotton mill; that plaintiff was then regularly employed as a weaver in the weave room, over which defendant D. A. Hoyle was foreman in said cotton mill; that while on said date plaintiff in the regular course of his employment was operating a loom, defendant D. A. Hoyle, while in discharge of his duties as such foreman, came upon plaintiff and "without provocation *** cursed and abused plaintiff for the manner in which" he "was operating said loom, and in a violent, abusive and insulting manner informed plaintiff that he was fired and fully discharged from further service as an employee of his said co-defendant, and, without warning or provocation" violently and in anger "grabbed plaintiff around the body and dragged and carried" him "to a nearby open doorway which provided an exit to the ground about six feet below *** and in the struggle which plaintiff was making for his release and escape from his said violent and forcible ejectment and imminent peril both plaintiff and said D. A Hoyle fell to the floor, with the result that plaintiff was painfully injured about his arms and shoulders and suffered violent internal pains and distress, from which he suffered for several weeks thereafter." That, as restated in paragraph one of second cause of action, "On said date of March 7, 1939 while employed as a weaver in the weave room of defendant Rhodes-Rhyne Manufacturing Company, plaintiff, without just cause or provocation, was suddenly beset and brutally assaulted by defendant D. A. Hoyle, foreman of said weave room, and who at said time was on duty as the agent, servant or factor of his said co-defendant *** that said Hoyle *** was acting within the scope of his authority and line of duty"; that the said acts of defendant Hoyle were committed (a) for the purpose of intimidating the plaintiff, and coercing him to obey the orders of defendants, (b) "with malice and with wilful and wanton disregard for the rights of plaintiff" and (c) while acting in the scope of his authority and line of duty as foreman of the weave room in cotton mill of defendant company.

Defendant, Rhodes-Rhyne Manufacturing Company, in answer filed admits: That on March 7, 1939, it was a corporation of and with principal place of business in North Carolina; that D. A. Hoyle was employed by it as a second hand or assistant to the foreman in its weave room; that for several years prior to such date plaintiff was employed as a weaver in its weave room; that on said date as it is informed and believes, upon defendant Hoyle, as such second hand or assistant to foreman, notifying plaintiff that he was discharged from further service as a weaver for defendant company, plaintiff denies Hoyle's authority to discharge him, and as a result thereof and of his refusal to leave the weave room and of words and acts of disrespect, insult and insubordination addressed by plaintiff to said Hoyle, in the presence of other employees in said room, a personal quarrel arose and a slight struggle or tussle ensued between plaintiff and Hoyle with the result that both fell to the floor.

The evidence introduced on the trial below is not contained in the case on appeal. However, in the judgment below it appears that when the case came on for trial, and after the jury was empanelled and the pleadings read, the defendant Rhodes-Rhyne Manufacturing Company demurred ore tenus to the jurisdiction of the court for that the matters and things of which plaintiff complains, in so far as same relate to it, are within the exclusive jurisdiction of the North Carolina Industrial Commission. "Whereupon, in response to inquiry by counsel for said defendant, the plaintiff's counsel entered an admission in the record that at the time complained of said defendant was a textile manufacturer and had in its employment more than five employees, and the court, at the close of all the evidence in the cause, sustained the demurrer of the corporate defendant, Rhodes-Rhyne Manufacturing Company for that any right which the plaintiff may have against the corporate defendant is governed by the Workmen's Compensation Act, and that the court has no jurisdiction of this case as it relates to the corporate defendant."

Plaintiff, reserving exception to the ruling of the court, took voluntary nonsuit as to defendant Hoyle, and, from judgment dismissing the action as to corporate defendant, appeals to Supreme Court and assigns error.

W. H. Childs and L. E. Rudisill, both of Lincolnton, for plaintiff appellant.

Jonas & Jonas, of Lincolnton, for defendant appellee.

WINBORNE Justice.

Upon the record on this appeal appellant, having the burden to do so, has failed to show error in the judgment below.

The jurisdiction of a court over the subject matter of an action depends upon the authority granted to it by the Constitution and laws of the sovereignty, and is fundamental. McIntosh P. & P., 7. Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265, 68 Am.St.Rep. 815. There can be no waiver of jurisdiction over the subject matter, and objection may be made at any time during the progress of the action. C.S. § 518. Miller v. Roberts, 212 N.C. 126, 193 S.E. 286; Henderson County v. Smyth, 216 N.C. 421, 5 S.E.2d 136; Burroughs v. McNeill, 22 N.C. 297, and numerous other decisions in this State.

It is stated in Burroughs v. McNeill, supra, that: "The instant that the court perceives, that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay...