Sutton v. Lyons, 156 N.C. 3 (1911)

Sept. 13, 1911 · Supreme Court of North Carolina

156 N.C. 3

H. V. SUTTON v. HANNAH LYONS et al.

(Filed 13 September, 1911.)

1. Negligence — Defective Machinery — Sawmill — Ownership—Evidence.

For tlie purposes of plaintiff’s action for damages alleged to have been received at the defendant’s sawmill while at work as an employee, evidence which tends to show that the mill was attached to defendant’s land as a part of the realty, or,« if unattached thereto, that it was easily moved, remained on the land for a year unused, and defendant’had ordered the plaintiff not to go on the premises, is evidence of ownership.

2. Evidence — Personal Property — Possession—Title. The possession of personal property is evidence of ownership.

3. Same — Operation.

The plaintiff sued for damages alleged to have been received, while working for defendant at his. sawmill. Defendant denied the ownership of the mill or that he operated it: Held, evidence that defendant was the owner of the mill on her land, which was sawing her timber, was some evidence that the defendant was operating it.

4. Principal and Agent — Tax List — Declarations—Evidence.

An abstract of taxes made by one purporting to be an agent is incompetent as against tbe principal in the absence of other evidence of agency, it being necessary that an agency be proved aliunde the declarations of the agent.

5. Principal and Agent — Evidence Aliunde.

Agency may be proved by the testimony of the agent.

Appeal from Justice, J., at tbe February Term, 1911, of Cueeituck.

This is. an action to recover damages for personal injury. Tbe plaintiff alleges tbat be was injured by tbe negligence of tbe defendant on 7 August, 1906, while working at ber mill, and tbat the negligence consisted in a defect in tbe machinery. Tbe defendant denies negligence, and also denies that she was tbe owner of tbe mill or tbat she operated it.

Tbe defendant admits in ber answer tbat tbe mill is located on ber land, and tbat it was engaged in sawing some of tbe timber on tbe land, but says tbat it bas not been in operation for twelve months. The defendant further alleges tbat tbe plaintiff was a trespasser in going upon said premises, and tbat be was there contrary to tbe express orders and directions of tbe defendant.

It was in evidence tbat W. J. Tate managed tbe mill, and for tbe purpose of showing tbat be was agent of tbe defendant Lyon, 1[he plaintiff offered in evidence tbe tax list- of tbe plaintiff for 1906, signed “W. J. Tate, agent,” which was excluded, and tbe plaintiff excepted.'

There was some evidence of negligence, and tbat this was tbe cause of tbe plaintiff’s injury, but bis Honor, being of opinion tbat there was no evidence tbat tbe defendant Lyon was tbe owner of tbe mill and operated it, entered a judgment of non-suit, on motion of tbe defendant, and tbe plaintiff excepted and appealed.

W. M. Bond and Ward & Grimes for plaintiff.

J. G. B. Ehringhaus and E. F. Aydlett for defendant.

AlleN, J.,

after stating tbe ease: In our opinion, there was evidence fit to be submitted to tbe jury. It is not conclusive in its nature, and may be weakened or strengthened, when all tbe facts are developed.

Tbe admission that she is tbe owner of tbe land on which tbe mill is located is some evidence that she is tbe owner of tbe mill. If affixed to tbe soil it would be a part of tbe land, nothing else appearing, and if not, and it was personalty, tbe fact that it is on her land is evidence of possession, and evidence of tbe possession of personalty is evidence of title, in tbe absence of other proof. There is also evidence that tbe defendant was exercising dominion over tbe property, as she says she bad given direction for tbe plaintiff to stay off tbe premises.

Tbe circumstance that tbe mill “is situated” on tbe land, and “has not been in operation during tbe past twelve months,” is entitled to some weight, as ordinarily valuable property, not in use, is not left so long on tbe land of another.

If there is evidence that tbe defendant is tbe owner of tbe mill on her land, and sawing her timber, this could be considered by tbe jury on tbe question of tbe operation of tbe mill.

“Where tbe plaintiff has suffered an injury from tbe negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima- facie evidence that tbe negligence was imputable to tbe defendant to show that be was tbe owner of tbe thing, without proving affirmatively that tbe person in charge was tbe defendant’s servant. It lies with tbe defendant to show that tbe person in charge was not bis servant, leaving him to show, if be can, that tbe property was not under bis control at tbe time, and that tbe accident was occasioned by tbe fault of a stranger, an independent contractor or other person, for whose negligence tbe owner would not be answerable. 1 Sherm. and Redf. Neg., 71. Any other rule, especially where persons are dealing with corporations, which can act only through agents and servants, would render it almost impossible for a plaintiff to recover for injuries sustained by defective machinery or negligent use of machinery.” Midgette v. Manufacturing Co., 150 N. C., 341.

The abstract of taxes was not admissible in evidence. It was offered to show that Tate was the agent of the defendant, but it amounted to no more than a declaration, and an agency cannot be proved in this way.

“That an agency must be proved aliunde the declarations of the alleged agent is elementary law, and this is true both as to the establishment of the agency and the nature and extent of the authority.” West v. Grocery Co., 138 N. C., 168. It may, however, be established by the testimony of the agent under oath. Machine Co. v. Seago, 128 N. C., 160.

The judgment of nonsuit is set aside and a new trial ordered.

New trial.