Thorp v. Minor

• Citation: 13 S.E. 702,109 N.C. 152
• Parties: Thorp v. Minor et al.
• Decision Date: 13 October 1891
• Court: United States State Supreme Court of North Carolina

13 S.E. 702

109 N.C. 152

Thorp v. Minor et al.

Supreme Court of North Carolina

October 13, 1891

Appeal from superior court, Granville county; Edwin T. Boykin Judge.

Action for negligence by Gilbert Thorp against R. V. Minor and others. The defendant Minor was the owner of a horse which he permitted to remain with the defendants Meadows & Wilkerson when he rented his warehouse to them, and all three occasionally used the horse. On the day in question W. A Wilkerson, who was a clerk in the employ of the firm obtained the use of the horse by permission of Meadows (without the knowledge or authority of Minor, the owner of the horse) to drive to a picnic; and Meadows told him to send the horse back if he had an opportunity to do so, which he did by the defendant Hester, a boy of 18 or 19 years of age, and who was not in the employ of Meadows & Wilkerson or of Minor. It was further in evidence that the defendant Hester left the horse standing in the street unhitched, under charge of no one; that the horse ran away, and ran violently against plaintiff's horse, in spite of his efforts to prevent it, and damaged plaintiff's horse by running the buggy-shaft into his shoulder, so that he died. The court intimated an opinion that plaintiff could not recover of Hester, because he was a minor, and no guardian ad litem had been appointed, nor against Meadows & Wilkerson, because there was no evidence that Hester was in their employ. The plaintiff, in deference to the intimation of the court, took a nonsuit, and appealed. Affirmed.

The owner of a horse, having rented a warehouse to a certain firm, left the horse with them, and used the horse in common with the firm. A clerk of the firm obtained the horse from the firm, without the knowledge of the owner, to drive to a picnic, the firm telling him to send the horse back if he had opportunity, which he did by a minor not in the employ of the firm or of the owner. The minor left the horse standing in the street, and it ran away, and killed plaintiff's horse. Held, that the facts fail to show any negligence on the part of the owner.

Battle & Mordecai and A. W. Graham, for appellant.

T. T. Hicks, for appellees.

Clark J.,

We concur with his honor.

1. The plaintiff could not recover against the defendant Hester, because he was an infant, and no guardian ad litem had been appointed.

2.

Nor against the clerk, W. A. Wilkerson, for there is no allegation of...