Whitehurst v. Elks, 39.
| Decision Date | 22 September 1937 |
| Docket Number | No. 39.,39. |
| Citation | 212 N.C. 97,192 S.E. 850 |
| Court | North Carolina Supreme Court |
| Parties | WHITEHURST. v. ELKS et al. |
Appeal from Superior Court, Currituck County; C. L. Williams, Judge.
Action by Noah Whitehurst, administrator of David Whitehurst, deceased, against F. A. Elks and others. From a judgment dismissing the action as to the defendant F. A. Elks, the plaintiff appeals.
Affirmed.
This is an action to recover damages for the death of plaintiffs intestate.
The action was begun in the superior court of Currituck county on October 17, 1936.
In his complaint, plaintiff alleges that his intestate died in Currituck county, N. C, on December 18, 1935; that the death of his intestate was the result of injuries which he suffered while he was engaged in the performance of his duties as an employee of the defendants; and that said fatal injuries were caused by the negligence of the defendants, as specifically alleged in the complaint.
He demands judgment that he recover of the defendants damages for the death of his intestate in the sum of $50,000.
The material allegations of the complaint are denied in the several answers of the defendants.
At the close of the evidence for the plaintiff, each of the defendants moved for judgment as of nonsuit. The motions were allowed, and the action was dismissed as to each defendant. C.S. § 567.
From judgment dismissing the action as to the defendant F. A. Elks, plaintiff appealed to the Supreme Court, assigning error in the judgment.
C. R. Morris, of Currituck, and M. B. Simpson and R. Clarence Dozier, both of Elizabeth City, for appellant.
Blount & James, of Greenville, and McMullan & McMullan, of Elizabeth City, for appellee, F. A. Elks.
It may be conceded, without deciding, that there was evidence at the trial of this action tending to show a relationship between the defendant F. A. Elks and the defendant J. H. Dunbar, such that negligence on the part of the defendant J. H. Dunbar resulting in the death of plaintiff's intestate, would have been imputed to the defendant F. A. Elks on the principle of respondeat superior. On the facts shown by all the evidence, the defendant F. A. Elks was liable to the plaintiff in this action only on this principle.
The trial court, being of opinion that there was no evidence tending to show liability on the part of the defendant J. H. Dunbar to the plaintiff, dismissed the action by judgment as of nonsuit as to the defendant J. H. Dunbar and also as to the defendant F. A. Elks.
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