Brazille v. Carolina Barytes Co.
| Decision Date | 20 December 1911 |
| Parties | BRAZILLE v. CAROLINA BARYTES CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Madison County; Lane, Judge.
Action by Charles Brazille against the Carolina Barytes Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Evidence held sufficient to show that a release was obtained by fraud.
Martin & Wright, for appellant.
Guy V Roberts, W. W. Zachary, and Moore & Rollins, for appellee.
This is an action to recover damages for personal injuries. The plaintiff alleges that the company furnished him and other employés iron tamping rods, to be used in tamping dynamite and while so being used the iron tamping rods caused an explosion which seriously and permanently injured the plaintiff. He further alleges that in a few days after his return from the hospital, and while blind and suffering in mind and body from said injuries, and mentally incompetent and incapable of transacting any business, the defendant company, by fraud and false representation, secured his signature to an alleged release. The defendant denied that the release was procured by fraud, and alleged that the plaintiff was competent to transact business at the time it was signed. There was evidence that the plaintiff was an inexperienced miner, and did not know the danger of using the iron tamping rods; that the defendant knew that it was highly dangerous to allow its employés to use them, but decided to take the risk, as the company could get along faster and do more work. The jury found, in response to the 13 issues submitted to it, that the plaintiff was injured by the negligence of the defendant company; that he was not guilty of contributory negligence; that he did not assume the risk that he was not injured by the negligence of a fellow servant; that the plaintiff did not have sufficient mental capacity to execute the release; that the defendant had knowledge of plaintiff's mental incapacity; that the release was obtained by fraud and fraudulent representation; and that the amount ($372) paid the plaintiff at the time he signed the release was not a fair and reasonable consideration, and assessed the plaintiff's damages at $4,850.
The first exception is because the plaintiff's wife was allowed to testify as to his mental incapacity the day he signed the release. This was competent. Stewart v. Stewart, 155 N.C. 341, 71 S.E. 308; Clary v. Clary, 24 N.C. 78; Whitaker v. Hamilton, 126 N.C. 466, 35 S.E. 815; Horah v. Knox, 87 N.C. 485; Bost v. Bost, 87 N.C. 479.
Exception 2, for refusal of the motion to nonsuit, cannot be sustained.
Exception 3 is because the court did not set aside the verdict upon the motion of the defendant, on the ground that, the jury having found the plaintiff mentally incompetent when he signed the release, and he having failed to allege and prove sanity since, he could not bring this action. If there was estoppel, it was upon the defendant, who had alleged in its answer that the plaintiff had mental capacity. It is true the jury found that the plaintiff was incompetent to sign the release December 23, 1909, by reason of his physical and mental suffering at that time, caused by his injuries; but there was no presumption that such suffering, with the consequent mental and physical inability to attend to business, continued down to the time of the trial in October, 1911.
Exception 4 was because the court signed judgment upon the verdict.
Exception 5 is because the court refused to instruct the jury that if "the plaintiff was negligent in any degree and this was the proximate cause of his injury they will answer the tenth issue 'yes."' An instruction that if the plaintiff was "negligent in any degree" would simply confuse the jury and has been condemned in -- v. --, at this term. Beach, Con. Neg. §§ 21-26; Thompson, Negligence, §§ 170-172, and 267; 7 A. & E. Enc. 383. The court properly refused to instruct the jury that if they believed the evidence to answer the tenth issue "yes" and also in refusing to instruct the jury to make the same response if the plaintiff knew the danger of using an iron tamping rod. These are the 6th and 7th exceptions. In lieu of them the instruction of the court on these propositions was in accordance with our precedents.
The 8th, 12th and 13th exceptions are beause the court refused to instruct the jury to answer the issue as to fraud in obtaining the release in the negative. There was evidence tending to show fraud which was sufficient if believed by the jury to justify the finding of the issue in the affirmative. Among them was the evidence that the plaintiff's wife and brother were not permitted to be present in the office when the release was signed but were left outside in the cold; that the release was executed in a few days after the plaintiff left the hospital, and while he was suffering great pain and mental anxiety occasioned by his injuries; that plaintiff was ignorant and unable to write, blind, and his hearing badly impaired; that, as he testified, he thought that he was giving a receipt for wages; that he had no friends or counsel to advise him; that the consideration paid was $372, whereas the jury found that $4,850 was reasonable and just compensation. These and other circumstances were sufficient to carry the case to the jury and justify its finding. Hayes v. R. R., 143 N.C. 128, 55 S.E. 437; Dorsett v. Mfg. Co., 131 N.C. 259, 42 S.E. 612; Bean v. R. R., 107 N.C. 746, 12 S.E. 600.
The ninth exception is because the court modified an instruction asked by the defendant,...
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