Harrison v. Southern Ry. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: W. C. COTHRAN, A. A. J.
• Citation: Harrison v. Southern Ry. Co., 131 S.C. 12, 127 S.E. 270 (S.C. 1925)
• Decision Date: 06 March 1925
• Docket Number: 11710.
• Parties: HARRISON v. SOUTHERN RY. CO.

127 S.E. 270

131 S.C. 12

HARRISON v. SOUTHERN RY. CO.

No. 11710.

Supreme Court of South Carolina

March 6, 1925

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by Rebecca Harrison against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

The following paragraph contains all allegations of fraud contained in plaintiff's complaint and referred to in the opinion:

"That at the time of the wreck and shortly thereafter, while the plaintiff was near the scene of the wreck, a white man, who said he was representing the railroad, came along and gave to this deponent ten dollars ($10.00), and asked her for a receipt; that this deponent signed what she thought was a receipt, and received the ten dollars ($10.00), which she thought was being given her to assist her in getting home; she having had a ticket on the defendant's railroad, and the train having been wrecked, this deponent was under the impression that she was given temporary assistance, and accepted that ten dollars ($10.00) upon the basis of temporary relief; that this plaintiff is now informed and believes, from statements of her counsel, that the Southern Railway claims that she has signed a release releasing them from any and all liabilities; that this plaintiff alleges that the release, or so-called release, was obtained from her by fraud on the part of the railway company, and that the same is null and void."

Frank G. Tompkins and Heyward Brockinton, both of Columbia, for appellant.

John Hughes Cooper and John E. Edens, both of Columbia, for respondent.

W. C COTHRAN, A. A. J.

During September, 1923, the plaintiff was a passenger on one of the trains of the defendant. There was a derailment of the train and the plaintiff was injured. Some days after the accident she executed a release for $10, holding the defendant harmless from any other claims or demands.

The exceptions charge error on the part of the trial judge as follows: (1) Refusal of motion for nonsuit; (2) refusal of motion to direct verdict; (3) error in charge; and (4) refusal to grant a new trial.

Under the view which we take of this case, it is only necessary to consider the alleged error in refusing to grant the nonsuit. The case of Levister v. Railway, 56 S.C. 508, 35 S.E. 207, supported by the later cases of McDowell v Railway, 113 S.C. 399, 102 S.E. 639, and Brown v Lumber Co. (S. C.) 122 S.E. 670, appears to be conclusive of this issue. See, also, McKittrick v. Greenville Traction Co., 84 S.C. 275, 66 S.E. 289; Riggs v. Home Mut. Fire Protection Ass'n, 61 S.C. 448, 39 S.E. 614; and Treadway v. Union Buffalo Mills Co., 84 S.C. 41, 65 S.E. 934.

The respondent, however, makes two contentions--one that the consideration paid at the time the release was executed was tendered to the defendant three months before the trial; and the other that the defendant was guilty of fraud in obtaining the signature of the plaintiff to the release. If the attorneys for the plaintiff had been in ignorance of the release, and had drafted their complaint without mention of it, then they would have had a perfect right to make tender of the consideration after the complaint was...