Mason v. Texas Co., Inc.

• Decision Date: 11 July 1934
• Docket Number: 257.
• Citation: 175 S.E. 291,206 N.C. 805
• Parties: MASON v. TEXAS CO., Inc.
• Court: North Carolina Supreme Court

175 S.E. 291

206 N.C. 805

MASON v. TEXAS CO., Inc.

No. 257.

Supreme Court of North Carolina

July 11, 1934

Appeal from Superior Court, Carteret County; Frizzelle, Judge.

Action by Howard Mason against the Texas Company, Inc. From a judgment for plaintiff, defendant appeals.

New trial.

In action for injuries caused when pipe fell from wharf plaintiff had burden of showing that one installing pipe and who left pipe in place involved was agent or employee of defendant.

Plaintiff alleged and offered evidence tending to show that he was injured on Saturday evening, August 1, 1931. The testimony disclosed that Dennis Mason operated a filling station at Atlantic, N. C., at which he sold products manufactured by the defendant. In connection with his business he owned a wharf at said point. This wharf was about eight feet above the water. There were eighty yards of pipe connected together, stretched along the wharf. The old pipe had been taken up and new pipe laid. It was lying about six or eight inches from the edge of the wharf. The plaintiff testified as follows: "There were six of us there getting our boats ready to go get our nets on. That was on Saturday evening. There was no danger there at all. We had all been working right around this dock for about forty years. We had been there turning our boats over Friday and Saturday and I had just got mine righted turning it over, when something struck me. I don't know whether I was knocked down or not. Something got me. It was that pipe, eighty yards of pipe that he had left on the opposite side of the wharf. Mr Chadwick had left it. He had been there to take up the old pipe and put down new. * * * Eighty yards of it was connected solidly together and it fell and struck me there. It left me in a bad condition. * * * I did not bring my boat in contact with the wharf. She was about five or six feet from the wharf. * * * I told Mr. Hamilton the pipe had jumped off. I don't know how it got off. There was a boat started there at the time. I don't know who started the engine. I don't know whose boat it was unless it was Charlie Willis'. I don't know whether the pipe fell off when he started the boat or not. Something must have shook the pipe off. The pipe was inch and a half pipe." The evidence further disclosed that Dennis Mason, the owner of the wharf, upon which the pipe was lying, ran a store and sold gasoline supplies and groceries. He was selling the Texas gasoline. He represented the Texas Company. A witness for plaintiff testified that "the pipe was somewhere between four and five inches from the edge of the wharf. Some parts of it were over the wharf. It had a crook in it." The plaintiff offered evidence that the pipe had been taken up and new pipe installed by a man named Chadwick. In order to connect Chadwick with the defendant, the plaintiff was asked the following question by his counsel: "You say Mr. Cradwick was doing this work and left the pipe there? For whom was he doing the work? A. The Texas Company. 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."

The defendant in apt time objected to the question, but the objection was overruled.

The defendant offered in evidence the contract between the defendant, the Texas Company, and Dennis Mason, which was in writing and said writing discloses that the defendant leased to said Dennis Mason certain equipment to be used by him on the premises for the storage and sale of petroleum products purchased solely from the defendant company; "but at all times is to remain the property of the company."

The defendant also offered in evidence the written contract between C. B. Chadwick and the Texas Company, dated July 22 1931, and in words and figures as follows: "I propose to install new 1 1/4 galvanized pipe line on Dennis Mason's Dock at Atlantic, N. C., furnishing all labor and material for the sum of $150.00 (700 Ft. Pipe). I guarantee this work to be of first class and will correct any defects arising within a period of thirty days after completion without cost to The Texas Company."

Chadwick testified that in making the repairs on the wharf "I had complete control of the job and hired all labor and furnished all material. I had been through the job possibly three days when the accident happened. I left the old pipe between a foot and a foot and a half on the right...