Smith v. Cathey

• Decision Date: 09 June 1937
• Docket Number: 753.
• Citation: 191 S.E. 505,211 N.C. 747
• Parties: SMITH v. CATHEY et al.
• Court: North Carolina Supreme Court

191 S.E. 505

211 N.C. 747

SMITH v. CATHEY et al.

No. 753.

Supreme Court of North Carolina

June 9, 1937

Appeal from Superior Court, Forsyth County; Frank S. Hill, Special Judge.

Action for assault by Jessie Smith against G. M. Cathey and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

This is an action for assault, brought by plaintiff against defendants, alleging damage.

The judgment in the court below is as follows: "This cause coming on to be heard and being heard before His Honor Frank S. Hill, Judge Presiding, at the April 12th Term of the Superior Court of Forsyth County, and after a jury was impanelled to try the issues, the defendants, G. M. Cathey and Buster Green, trading as Arrow Taxicab Company demurred ore tenus to the amended complaint, including the substituted paragraphs four and five of said complaint, on the grounds that it does not set out facts sufficient to constitute a cause of action against them. Upon hearing the argument of counsel the Court sustained the demurrer and dismissed the action as to the defendants, G. M. Cathey and Buster Green, trading as Arrow Taxicab Company and the plaintiff excepts and appeals to the Supreme Court of North Carolina. A juror was then withdrawn and a mistrial declared as to the defendant, Barther Groves. This the 20th day of April, 1937. (signed) Frank S. Hill, Judge Presiding."

To the signing of the judgment, the plaintiff excepted, assigned error, and appealed to the Supreme Court.

Williams & Bright, of Winston-Salem, for appellant.

Price & Jones, Hosea V. Price, and W. Avery Jones, all of Winston-Salem, for appellees.

PER CURIAM.

We see no error in the judgment of the court below. The allegations of the complaint, construed in a light most favorable to plaintiff, do not state facts sufficient to constitute a cause of action (C.S. § 511 (6) against defendants G. M. Cathey and Buster Green, trading as Arrow Taxicab Company. When the assault took place Barther Groves, an employee of the Arrow Taxi cab Company, was not about his master's business, nor was his act in the scope of his employment. Ferguson v. Spinning Co., 196 N.C. 614, 146 S.E. 597, 62 A.L.R. 1430; Jackson v. Scheiber, 209 N.C. 441, 184 S.E. 17.

The judgment of the court below is affirmed.