Beard v. Southern Ry. Co.

• Decision Date: 21 November 1906
• Citation: 55 S.E. 505,143 N.C. 136
• Parties: BEARD v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

55 S.E. 505

143 N.C. 136

BEARD v. SOUTHERN RY. CO.

Supreme Court of North Carolina

November 21, 1906

Appeal from Supreme Court, Guilford County; Ferguson, Judge.

Action by C. H. Beard against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Where plaintiff admitted receiving certain letters from defendant which were not produced, and that copies shown him were correct, defendant was entitled to ask him on cross-examination regarding the contents of the letters.

This action is prosecuted for the recovery of damages sustained by the plaintiff while in the employment of defendant by reason of alleged negligence. The defendant denies that it was guilty of negligence, and alleges that plaintiff was injured by reason of his own negligence. For further defense defendant sets up a release executed by plaintiff. In reply to this new matter plaintiff avers that at the time of the execution of the release he did not possess sufficient mental capacity to make the contract, and that the release was procured by fraud and undue influence. For the purpose of ascertaining the truth in regard to these several allegations, appropriate issues were submitted to the jury all of which were found in accordance with plaintiff's contention. The facts, as they are related to the exceptions, are set forth in the opinion. From a judgment upon the verdict, defendant appealed.

King & Kimball, for appellant.

J. A Barringer, for appellee.

CONNOR J.

The record contains 38 assignments of error. Several of them become immaterial by reason of the verdict upon the first issue, which was directed to the execution of the release. The jury found that plaintiff did not, for a valuable consideration, "release and absolve the defendant from all liability on account of the injury." In view of the testimony and his honor's instruction, this finding involves the conclusion that plaintiff did not possess sufficient mental capacity to understand its effect upon his legal rights when he signed the release. The second issue therefore, as his honor instructed the jury, became immaterial, and the several exceptions to the rulings bearing upon it need not be considered. Sprinkle v. Wellborn, 140 N. C., at page 181, 52 S. E., at page 566, 3 L. R. A. (N. S.) 174. It is but just to the persons who were present, and witnessed the execution of the release, to say that we find no evidence of fraud or undue influence practiced upon plaintiff. He testified that he did not know or understand what he did, and had no recollection that he ever signed the release. There was ample evidence, both upon his own examination and other witnesses, that plaintiff was in no fit mental condition to be intrusted with the duties which he undertook to discharge. Much of his testimony is difficult to understand or reconcile. This, however, was the duty and province of the jury. The release recites a consideration of $1, and contains no stipulation or promise as to employment, although there is evidence that such was the real consideration. The court permitted Mrs. Beard to testify that, in her opinion, plaintiff did not, at the time he signed the release, have "sufficient mental capacity to enable him to have reasonable judgment as to the effect of it and what it purported to be." We cannot commend the form of the question, but do not think it sufficiently obscure to constitute reversible error. Evidently she used the word "judgment," which is criticised by defendant, as synonymous with "understanding." It was competent for the witness to express an opinion. Bost v. Bost, 87 N.C. 477; Horah v. Knox, 87 N.C. 483. Dr. Hanes, who had attended plaintiff, was permitted to testify that in his opinion the fall described by plaintiff would produce the mental condition in which he found him; also that a blow on the "outer skull," leaving no sign, might be sufficient to break the "inner skull," giving his reasons, and describing the effect upon the mind of a person sustaining such an injury. We do not think that defendant's exception to this testimony can be sustained. The witness was not expressing an opinion upon a hypothetical case. He had treated plaintiff, and knew the conditions with which he was dealing. There was no controversy regarding the manner in which plaintiff sustained the injury. The exception does not present the question as in Bowman's Case, 78 N.C. 509, or Summerlin v. Railroad, 133 N.C. 550, 45 S.E. 898. It is rather within the principle announced in Jones v. Warehouse Co., 137 N.C. 337, 49 S.E. 355.

We have carefully examined his honor's instruction regarding the quantum and character of mental capacity requisite to make a valid contract, and find that it is in accordance with the decisions of this court and standard authorities. Sprinkle v. Wellborn, supra, where the cases are collected. His honor was clearly correct in saying that when insanity is once shown to exist, there is a presumption that it continues, open, of course, to testimony showing a restoration of mental soundness. There was evidence that at times plaintiff was mentally unsound--nonsane. We have examined the other exceptions to rulings bearing upon this issue, and find no error.

It appears that after the injury sustained by plaintiff he again entered into defendant's employment; that some time thereafter he was discharged. Defendant claims that he was discharged because of the use of morphine and whisky. It also claims that plaintiff's mental condition is attributable to injuries received several years before the one complained of. There was a large quantity of evidence bearing upon these contentions. Among other testimony regarding the discharge of plaintiff, defendant proposed to introduce two letters purporting to be signed by plaintiff, which he denied writing or sending. Defendant's witness, assistant superintendent, testified "that he received in due course through the mail the letter," etc. The letter was, upon plaintiff's objection, excluded. We concur with his honor's ruling in this respect. While it is well settled that where it is shown that a letter was addressed stamped, and mailed, there is a presumption that it was received by the addressee, it cannot be that the receipt of a letter purporting to be signed by a person is any evidence that it was written by such person. No authorities are cited to sustain the exception. Defendant offered to introduce copies of two letters addressed to the plaintiff by its assistant superintendent. In respect to these copies, the record states: "The plaintiff having testified, after examining the papers, that he received the original, of which there were copies, and it being admitted that the defendant, on the convening of the court in the afternoon on which the trial of the case was begun, had notified the plaintiff to produce the original in court." It was also admitted that plaintiff resided about two miles from Mt. Airy--the trial being had in Greensboro; that a train left Greensboro at 4:30 o'clock in the afternoon for Mt. Airy, returning the next morning at 12 o'clock. Plaintiff and his wife were in Greensboro attending the court. The offer to introduce the copies was made in the afternoon of the second day of the trial. The copies were excluded by the court. There is no admission or finding regarding the distance between Greensboro and Mt. Airy. We take note of the fact that it is some 70 miles. The case was argued upon the theory that the court excluded the copies because the notice to produce the originals was not sufficient in point of time. We concur in this view. ""Generally, if the party dwells in another town than that in which the trial is had, a service on him at the place where the trial is had, or after he has left home to attend the court, is not sufficient." Greenleaf, Ev. § 563. Certainly, the plaintiff was not called upon to go himself or send his wife away from the town in which his case was being tried to find and produce the letters. No reference is made to them in the pleadings, nor was there anything in the case to suggest to the plaintiff the probability that they would be called for. The defendant did not offer to ask the plaintiff on cross-examination regarding the contents of the letters, as it may have done. Kalk v. Fielding, 50 Wis. 339, 7 N.W. 296. Whether, upon plaintiff's admission that he had received the original letter, of which the paper writing shown him was a copy, this did not entitle defendant to read the copy without having given the notice, is not raised in the argument. It would seem, however, that such admission relieved the defendant of the duty of giving the notice. The authorities are not entirely in harmony, but, upon the reason of the thing, if the person to whom a letter is addressed, and who admits its receipt, admits that the copy shown him is a correct...