Dorsett v. Clement-Ross Mfg. Co.

• Decision Date: 11 November 1902
• Citation: 42 S.E. 612,131 N.C. 254
• Parties: DORSETT v. CLEMENT-ROSS MFG. CO.
• Court: North Carolina Supreme Court

42 S.E. 612

131 N.C. 254

DORSETT v. CLEMENT-ROSS MFG. CO.

Supreme Court of North Carolina

November 11, 1902

Appeal from superior court, Davidson county; Shaw, Judge.

Action by Arthur Dorsett against the Clement-Ross Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

In an action by a servant for injuries, it was proper, on cross-examination, for the purpose of impeachment, to ask defendant's physician, who attended plaintiff and participated in procuring a release, whether he had not witnessed several other releases of the same character for defendant.

P. H C. Cabell and Glenn, Manly & Hendren, for appellant.

Emery E. Raper, for appellee.

FURCHES C.J.

The defendant is a corporation engaged in manufacturing veneering, and the plaintiff was an employé of defendant at the time he received the injury complained of, and this action is brought for damages. The plaintiff alleges that his business at the time of the injury, as it had been for the past four or five days, was to hoist logs or blocks by means of a sweep, to which was attached a block and tackle; that the blocks were raised in this way from the floor of the building, a distance of some 4 feet, swung around to the machine, and then fastened; that it was also a part of his duty to sweep them off with a broom, which was kept hanging on the post of the sweep or crane for that purpose; that he had just hoisted a block, placed it upon the machine, swept it off, and was in the act of hanging up the broom, when he was injured. This machine consisted of a large knife or blade that cut or pared the veneering from the blocks as they were made to revolve by means of powerful cogwheels. These cogwheels were on a piece of shafting, 4 feet and 1 inch from each other, and about 17 inches in diameter, and worked by other smaller cogwheels. The evidence further tends to show that the space in which the plaintiff had to stand to do his work was about 4 feet long and about 18 or 20 inches wide and in this space stood the post of the crane on which the broom hung. These cogwheels were not boxed or covered, and as the plaintiff turned and was in the act of hanging up the broom, his coat sleeve was caught in the exposed cogwheels which had been put in motion, and his arm drawn in and so badly mangled that it was necessary to amputate it near the shoulder joint. It was no part of the plaintiff's duty to start or run the machine. The plaintiff alleges that his injury was caused by the negligence of the defendant, and without fault or negligence on his part. The principle ground complained of as negligence on the part of the defendant was the limited space the plaintiff had to work in, and the uncovered condition of the cogwheels, which, he says, could have been easily covered, without affecting the running or the efficiency of the machine. The defendant answered the complaint, and admits the injury, and that the cogwheels mentioned in the complaint were uncovered, but denies that it was due to the carelessness or the negligence of the defendant that they were not covered, and alleges that it was neither careless nor negligent not to have them covered, and that the plaintiff was injured by reason of his own carelessness and negligence. The defendant also pleads in discharge of any right of action the plaintiff may have had against it on account of said injury a release and discharge given the defendant by the plaintiff since he received the injury. To this release the plaintiff replied, and alleged that it was procured by fraud, deception, and undue influence.

This presents the first question for our consideration, as it is a bar to the plaintiff's right to recover, whatever the merits of his case may be, unless it is set aside. And it is not for us to say whether it was properly procured or not. This was a matter for the jury, if there was such evidence as to authorize the court in submitting the question to them and as to whether evidence was allowed to go to the jury over the objection of the defendant that ought not to have been allowed, or that the judge erroneously instructed the jury as to the law involved in the trial of the issue, or refused properly to instruct the jury when requested to do so. And it is not our duty to undertake to reconcile conflicting testimony, nor to say what weight or credit should be given to such testimony. Indeed, in considering this question as to whether there was evidence reasonably tending to establish fraud in procuring the release, we can only consider that which tends to show fraud, as the jury might have believed it, and not have believed that tending to disprove the fraud. But this evidence must be more than a scintilla,--more than to raise a suspicion or belief; but it must be such, if believed, as ought to satisfy a reasonably fair mind that the release was not obtained fairly and was not without consideration. Harding v. Long, 103 N.C. 1, 9 S.E. 445, 14 Am. St. Rep. 775. It therefore becomes our duty to examine this question upon the evidence in the case which tends to show fraud in its procurement. The plaintiff says it does not have the appearance of a business transaction, in which parties are expected to deal on equal terms; that the plaintiff was not consulted as to the terms of this contract (release); that it was prepared in Thomasville by the agent of the defendant without his knowledge, and that the terms were fixed by the defendant or its agent without the knowledge or consent of the plaintiff; that, the release being prepared on the 18th of March (the plaintiff having been injured on the 5th day of February), the superintendent (Finney) of defendant's factory and Dr. Julian, the physician of the defendant who amputated the plaintiff's arm and attended him while sick from the injury, go to the plaintiff's house, 2 1/2 miles in the country, to get him to sign it. When they got to plaintiff's, he was at the barn, and the following is the plaintiff's statement of what occurred: "Finney did not ask me what doctor I wanted. I told him I wanted Dr. Mock. I live two and a half miles from Thomasville. Was in the barn, pushing back hay. Julian and Finney came in Julian's buggy. Julian spoke and said, 'What are you doing up here?' and I spoke and said a few words, and one of them said, 'Come down. I want to talk with you.' And I went down, and we went up to the bars, and Finney said, 'You were up the other day to get money to get clothes,' and I said, 'Yes, sir;' and he said, 'We have a paper here for you to sign, so the doctors can get up their money.' And Dr. Julian said, 'Yes; Dr. Hill is pushing on me. So is Dr. Bird. You will sign the paper, so we can get our money, and they will pay you $15 for your time.' I said I would rather not do that now,--would rather see Mr. Clement, the man that owned the factory; and Dr. Julian said, 'There is Mr. Finney. He will do as well;' and he did not think Mr. Clement would do any better than that, and pay me my time, like he had done all the rest of the boys; and we talked on awhile, and I said I would rather go and see my wife. Dr. Julian said, 'Aren't you 21 years old? She has nothing to do with it."' He says nothing was said to him about its being a release, and he thought it was a paper to enable Dr. Julian to get his money, and to pay him $15 for lost time when he was not able to work. He says the paper was partly read over to him, and he will not say it was not all read; but, if it was, he did not understand it to be a release of defendant's liability to him for damages; that he is an ignorant man, and cannot read or write, except his name. This paper was not required to be probated and registered, but after the plaintiff had signed it, and Finney and Julian had witnessed it, they would not pay him the $15 until he went before a notary public and acknowledged the same. The release is stated to be in consideration of $95 paid the plaintiff, when it is admitted that he was only paid $15. This they undertake to explain by saying that the...