44 N.C. App. 39 | N.C. Ct. App. | 1979
The sole question is whether it was proper to grant summary judgment for third party defendant, Tilley. If the pleadings and affidavits show there is no genuine issue as to the material fact of ownership of the cow by Tilley, then as a matter of law he is entitled to summary judgment. G.S. 1A-1, Rule 56(c). Contrary to the burden at trial, the burden at this stage is on Tilley as movant to establish the lack of a triable issue. Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972); Tolbert v. Tea Company, 22 N.C. App. 491, 206 S.E. 2d 816 (1974). We conclude that he has not met this burden. It was error to grant summary judgment for Tilley. The pleadings and affidavits present a triable issue of fact on whether Tilley owned the cow which caused the wreck.
Looking at the record in a light most favorable to the party opposing the motion, the issue of ownership is a fact for the jury to determine and not a matter of law for the trial judge to rule on. It is not the purpose of summary judgment to conduct trials by affidavit.
The record discloses that Tilley owns land on both sides of the road for some distance in each direction from the point of the accident. The land is in pasture on both sides of the road except for the ground on which his home is situated. It is behind his home that the cow disappeared from view of the eyewitnesses. He had a herd of black angus in his pastures and a black cow allegedly caused the accident in question. The cow was observed crossing west to east and at all times not in the public right-of-way, which runs north to south, it was moving upon and further within land owned by Tilley. Tilley has the only herd of black cows in the neighborhood. The fences were in disrepair near the scene of the accident to the extent that a cow could have escaped out onto the highway. There was no decrease or increase in the size of the herd on the day before the accident and the day after the accident.
Tilley takes issue with Dellinger’s affidavit in opposition to the motion for summary judgment which says, “To the best of my knowledge, Mr. Tilley is the only one who owns cows within a radius of two miles on either side of the point in the road where the accident occurred, with the exception of one man who owns a single milk cow and this cow is not black in color.” (Emphasis add
What an affiant thinks are facts, unless it is a situation proper for opinion evidence, is not information made on personal knowledge proper for consideration on a summary judgment motion. Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E. 2d 278 (1976); Peterson v. Winn-Dixie, 14 N.C. App. 29, 187 S.E. 2d 487 (1972). However, in the case at hand, we do not have a situation of manufactured fact but merely a self-imposed limitation to the af-fiant’s personal knowledge which is all the rule requires. In any event, if this affidavit is disregarded, Tilley’s affidavits in support of his motion still would not carry his burden of showing that no genuine issue of material fact existed about whether he, the mov-ant, was owner of the black cow involved in the accident. See Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E. 2d 316 (1976); Ammons v. Kellogg, 137 Miss. 551, 102 So. 562 (1925); 4 Am. Jur. 2d, Animals § 123.
The judgment allowing third party defendant Tilley’s motion for summary judgment is
Reversed.
