Mason v. Texas Company, Inc.

BeogdeN, J. “When it is sought to hold one responsible for the neglect or tort of another, under the doctrine of respondeat superior, at least three things must be made to appear, yea four, and, upon denial of liability, the plaintiff must offer ‘some evidence which reasonably tends to prove every fact essential to his success.’ . . . These are: 1. “That the plaintiff was injured by the negligence of the alleged wrongdoer. 2. “That the relation of master and servant, employer and employee, or principal and agent, existed between the one sought to be charged and the alleged tort feasor. 3. “That the neglect or wrong of the servant, employee, or agent, was done in the course of his employment or in the scope of his authority. 4. “That the servant, employee or agent, was engaged in the work of the master, employer, or principal, and was about the business of his superior, at the time of the injury.” Martin v. Bus Line, 197 N. C., 720, 150 S. E., 501. Applying the principles so clearly stated by the Chief Justice in the Martin case, supra, to the facts of the present record, it is manifest that the burden was upon the plaintiff to show that C. B. Chadwick *808 was the agent or employee of the defendant in leaving the pipe upon the wharf of Dennis Mason. The first issue was perhaps designed for the purpose of establishing such relationship. However, the plaintiff offered no evidence that C. B. Chadwick was the agent or employee of the defendant in doing the work. It is true that the plaintiff testified that Chadwick was doing the work for the defendant, but on re-cross examination as shown by the record, he said: “They told me that the Texas Company gave it out on contract and he got the job. I was told that Mr. Chadwick had a contract with the Texas Company. I was told that at the time, he was a contractor to put the pipe down for the Texas Company.” Obviously, such evidence of agency was hearsay and should have been excluded. The defendant offered the written contract in evidence, and this contract, upon its face, in plain English discloses a relationship of independent contractor and not that of agency. Consequently, even if it be conceded that the instruction given the jury by the trial judge was correct as an abstract proposition of law, nevertheless there was no evidence that O. B. Chadwick was an agent or employee of the defendant. Hence, as the burden was upon the plaintiff to establish the agency, and having offered no evidence thereof, the defendant is entitled to a New trial. ScheNCK, J., took no part in the consideration or decision of this ease.