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HICKS v. BARNES.
of the family of the defendant to be reared as a member of it, and treated as such; and the defendant placed the plaintiff in his store and kept him there as a clerk and under the direction of the defendant he did clerk there for two years, and two months then he would be entitled to recover for what his services were reasonably worth, less what has been received and less his board. You will ascertain what was the work done.
5. But if the relationship was not that but was that of master and clerk, then the clerk could recover and you would answer "Yes," and also the amount.
The defendant excepted to the charge:
1. That the instructions in paragraph four does not correctly state the law, because, the services therein described are not inconsistent with the relation therein stated, and that plaintiff would not be entitled to recover under such facts.
2. That there is no phase of the evidence that supports the view of the case submitted in paragraph five.
The first, second and third instructions were in strict accordance to the decisions of this court. The exception to the fourth instruction should we think be sustained. The relation existing between the plaintiff and the defendant, as testified to by the plaintiff, brings the case clearly within the principle announced and applied in the several cases found in our reports. In Hussey v. Rountree, 44 N. C., 110, it is held that while the step father is under no legal obligation to support the child, or the step-child to serve the step-father, if he maintained the child and the child labored for him, they will be deemed to have dealt with each other in the character of parent and child and not as strangers. In Hudson v. Lutz, 50 N. C., 217, Pearson J., says: "The same principle applies to a grand-father and child when the one assumes to act in loco parentis. The grand-father allowed her (his daughter) and her child to live with him as members of his family
HICKS v. BARNES.
up to his death. The relation of the parties rebuts the presumption of a special contract." In Dodson v. McAdams, 96 N. C., 149; 60 Am. Rep., 408, the same principle was enforced and the plaintiff, a grand-daughter held not entitled to recover for services. Se also Young v. Herman, 97 N. C., 280.
In Callahan v. Wood, 118 N. C., 752, Faircloth, C. J., says: "We do not put our decision entirely on the kinship relation, but also on "one family" relation, established and maintained by the parties, and the entire absence of any intention to the contrary on the part of either party." In Avitt v. Smith, 120 N. C., 392, it is said: "In the absence of some contract, express or implied, showing an intention on the part of one to charge and the other to pay, the presumption is rebutted by the relationship." The text writers fully sustain the principle which this court has adhered to: "When an infant lives with his own parents or with others, whether relatives or strangers, who stand in loco parentis to him, rendering them the usual domestic services and receiving support and maintenance from such parents or strangers, as the case may be, there is no presumption of law on the part of the parent to pay the child for such services." Rogers on Domestic Relations, Sec. 480; Tiffiny's Parsons' Dom. Rel., Sec. 251, 252. In the light of these authorities, we think that his Honor should have instructed the jury, upon the plaintiff's own testimony to answer the issue in the negative. It is clear that he was there as a member of the family, there was no express contract to pay, and the law implies none. We approve of and concur in the opinion of Ruffin, C. J., in Williams v. Barnes, 14 N. C., 348: "I think such claims without probable evidence of a contract ought to be frowned on by courts and juries." The evidence in this case is a striking illustration of the wisdom of this observation by this eminent jurist. It is not the character of the services rendered which
CRAFT v ALBEMARLE TIMBER CO.
determines the right to recover, but the relationship of the parties, and the manner of terms upon which the child enters into and resides in the family of the one standing in loco parentis.
We do not think that upon the whole of the evidence there is any tesimony to sustain the fifth instruction. Upon the plaintiff's own evidence, he was residing with the defendant as a member of his family—as one of his own children, and not as a clerk. There must be a new trial.
Per Curiam:—New trial.
CRAFT v. ALBEMARLE TIMBER CO.
(Filed March 17, 1903.)
1. EVIDENCE-Sufficiency-Logs and Logging-Fires.
In an action for cutting and removing timber contrary to the terms of a contract, evidence of the plaintiff that he saw the hands of the defendant timber company cutting and removing the timber is some evidence of that fact, the sufficiency of which is for the jury.
In an action for burning timber, when a witness testifies that he saw smoke and went to the place where it was and saw the fire burning in the tree tops on the ground near the railroad, and that the engine had just passed, is some evidence of negligence, the sufficiency of which is for the jury.
3. RAILROADS-Negligence-Right of Way.
A company operating a private logging road is liable for fire caused by the ignition of combustible material negligently permitted to remain on land necessarily used by it as a right of way.
4. MASTER AND SERVANT-Railroads-Independent Contractor. A timber company building a railroad is liable for damages to land done by one who built the railroad under a contract with the company where it is shown that the work was done under the supervision and contract of the company.
CRAFT V. ALBEMARLE TIMBER CO.
5. EVIDENCE-Sufficiency-Independent Contractor.
The evidence in this case is sufficient to go to the jury to the effect that the party with whom the defendant contracted for the construction of the road and the cutting of the timber was not an independent contractor.
When a party fails to request the trial court to make its instructions more explicit, objection to the charge on that ground is waived. MONTGOMERY, J., dissenting.
ACTION by M. G. Craft and wife against the Albemarle Timber Company, heard by Judge Francis D. Winston and a jury, at September Term, 1902, of the Superior Court of MARTIN County. From a judgment for the plaintiffs, the defendant appealed.
Gilliam & Gilliam, for the plaintiffs.
John L. Bridgers, for the defendant.
WALKER, J. This action was brought to recover damages for wrongfully cutting and removing timber from the plaintiffs' land and for negligently burning other timber.
It appears that in August, 1895, the plaintiffs and the defendant entered into a contract by which, for the consideration therein expressed, the former conveyed to the latter for the term of five years the pine and poplar trees standing and growing on a tract of land owned by the plaintiff and particularly described in the complaint, and also the right and privilege of entering upon the land with its servants and teams and constructing and operating such "rail roads, tramways and roads" over and upon the said land as may be necessary for said purposes, and providing that the defendant should not cut trees measuring less than twelve inches on the stump except for the purpose of being used in the construction and operation of the road.
The defendant afterwards entered into a contract with Ward and White by which the latter agreed to construct the
CRAFT v. ALBEMARLE TIMBER CO.
railroad upon said tract of land and to cut the timber and to deliver the same at certain designated points on the Wilmington & Weldon Railroad for shipment to Norfolk, and for that service a certain compensation was provided.
It was further agreed that the defendant should furnish the rails, spikes and other fixtures, and the engine and cars to be used in the "Logging operations under the contract by Ward & White, the same to remain the property of the timber company."
It was further provided that the contractors "will cut, haul and deliver so far as may be practicable and in accordance with direction of the timber company, all the timber on the said land."
The plaintiff alleged that the defendant had cut and removed timber which measured less than 12 inches at the stump and which was not used in the construction of the road; but the defendant denied the allegation and contended that there was no evidence to sustain it. The plaintiff in his own behalf testified that he saw the hands cutting and removing the timber; and this was some evidence of the fact, the sufficiency of which was for the jury. As to whether the defendant is liable for what the servants of the contractors did, is a question which we will discuss hereafter.
The plaintiff further alleged that in constructing the road the contractors cut down trees and left the tree tops lying within a few feet of the track where they had become dry and very inflammable, and, by reason of the negligent operation of the engine, live coals or sparks were allowed to escape therefrom and lodge in the tree tops, which were about 12 feet from the rails, and they were thereby ignited and the fire was carried directly from them to his timber, which was destroyed. The defendant denied that the timber was destroyed by any negligent act on its part, or that there was any evidence of negligence, and specially averred that it was not