180 Ky. 469 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
A young man named J. F. Hayes, by his next friend, J. M. Massey, instituted this action in the Butler circuit court to recover of the Ohio Valley Tie Company, incorporated, and Lyons and Livers, a partnership, damages for personal injury sustained by him while working at a sawmill, which he charges was owned and operated by said corporation and partnership jointly. Each of the defendants answered and denied the averred negligence and pleaded contributory negligence on the part of Hayes. By the traverse issue was made upon the question of who operated the mill, each defendant denying the allegation of the petition that it operated the mill. The evidence is very unsatisfactory as to which of the defendants was the master of the mill. But it is conceded that the partnership of Lyons and Livers was in charge of and conducted the business at the mill, and it is claimed by
There are several other questions made by appellant which we deem unnecessary now to consider in view of the fact that a new trial must be had. If the plaintiff, Hayes, has arrived at the age of twenty-one and desires to do so, he may, by motion, be permitted to prosecute this action in his own name, or in his name by next friend in case he has not yet attained his majority. We do not regard as serious any of the questions made by appellant, except the one as to who operated the mill.
On the question of partnership, the contract which existed between the Ohio Valley Tie Company and Lyons and Livers with reference to the operation of the mill would no doubt shed much light. At any rate, agency can not be established by proof of statements or admissions of the alleged agent, but the acts and conduct of the parties are competent to that end. When the partnership between the defendants is established, or the agency is made to appear,.if either of these things are found to exist upon another trial, the court
Judgment reversed for a new trial in conformity to this opinion.