Smith v. Cathey, 211 N.C. 747 (1937)

June 9, 1937 · Supreme Court of North Carolina

211 N.C. 747

JESSIE SMITH v. G. M. CATHEY, President, BUSTER GREEN, Manager, Trading as ARROW TAXICAB COMPANY, and BARTHER GROVES, as Agent and Individually.

(Filed 9 June, 1937.)

Master and Servant § 23—

In this action to recover for an assault, defendant employers’ motions to nonsuit held properly granted for that the evidence disclosed that the wrongdoer was not about the employers’ business and was not acting within the scope of his employment in making the assault.

Appeal by plaintiff from Hill, Special Judge, 12 April, 1937. From Forsyth.

Affirmed.

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

Tbe 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 12 April Term of the Superior Court of Forsyth County, and after a jury was impaneled 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 A juror was then withdrawn and a mistrial declared as to the defendant Barther Groves.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 20 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 for plaintiff.

Price & Jones for defendants.

Pee, 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 Taxicab 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; Jackson v. Scheiber, 209 N. C., 441.

The judgment of the court below is

Affirmed.