Whitlow v. Southern Ry. Co

• Decision Date: 08 May 1940
• Docket Number: No. 544.,544.
• Citation: 217 N.C. 558,8 S.E.2d 809
• Court: North Carolina Supreme Court
• Parties: WHITLOW. v. SOUTHERN RY. CO. et al.

8 S.E.2d 809

217 N.C. 558

WHITLOW.

v.SOUTHERN RY. CO. et al.

No. 544.

Supreme Court of North Carolina.

May 8, 1940.

Appeal from Superior Court, Mecklenburg County; H. A. Grady, Emergency Judge.

Action for personal injuries by Gray Whitlow, by his next friend, J. C. Whitlow, against the Southern Railway Company and another. From a judgment striking out certain portions of the amended complaint, plaintiff appeals.

Judgment affirmed in part and reversed in part and case remanded.

Hiram P. Whitacre and J. C. Newell, both of Charlotte, for plaintiff, appellant.

W. T. Joyner, of Raleigh, and John M. Robinson and Hunter M. Jones, both of Charlotte, for Southern Ry. Co., defendant, appellee.

Grant & Grant, of Mocksville, for A. M. Kimbrough, defendant, appellee.

SCHENCK, Justice.

This is an appeal by the plaintiff from a judgment striking out certain portions of the amended complaint in an action to recover damages for personal injuries alleged to have been negligently inflicted by the defendants upon the plaintiff.

The original complaint alleged that the individual defendant, while acting in the scope of his employment as station agent of the corporate defendant, "wilfully and maliciously assaulted" the plaintiff "by firing a pistol from the window of the office of the said railway station, the bullet from which struck the infant plaintiff's left leg producing a compound fracture."

The amended complaint, —portions of which the court ordered stricken out, abandoned the original allegation of a wilful and malicious assault, and alleged that the individual defendant, while acting in the scope of his employment as station agent of the corporate defendant, "negligently and carelessly pointed and fired a pistol or revolver at this plaintiff from the open window of said depot station, the bullet from which said pistol struck the plaintiff's left leg" thereby causing injury.

The motions of the defendants to strike, which were allowed by the court, related to allegations that the individual defendant was possessed of a nervous and irritable disposition and of a violent and ungovernable temper, all of which was known to the corporate defendant.

We think and so hold, in view of the fact that the alleged cause of action is now bottomed on negligence, rather than on a wilful and malicious assault, the motions were properly allowed as to those allegations relating to the individual defendant's irritable disposition and violent and ungovernable temper, but were improperly allowed as to those allegations relating to said defendant's nervous disposition,...