McKittrick v. Greenville Traction Co.

• Court: South Carolina Supreme Court
• Writing for the Court: WOODS, J.
• Citation: McKittrick v. Greenville Traction Co., 84 S.C. 275, 66 S.E. 289 (S.C. 1909)
• Decision Date: 25 November 1909
• Parties: McKITTRICK v. GREENVILLE TRACTION CO.

66 S.E. 289

84 S.C. 275

McKITTRICK v. GREENVILLE TRACTION CO.

Supreme Court of South Carolina

November 25, 1909

Appeal from Common Pleas Circuit Court of Greenville County; J. W De Vore, Judge.

Action by Ada McKittrick against the Greenville Traction Company. Judgment of nonsuit, and plaintiff appeals. Reversed, and remanded for a new trial.

J. J McSwain, for appellant. Cothran, Dean & Cothran, for respondent.

WOODS J.

The action, commenced about 10th December, 1906, is for recovery of damages for injuries received by plaintiff while she was descending the steps in getting off a street car. The answer set up a general denial, contributory negligence, and the following release: "Greenville, S. C., Dec. 2, 1906. I have this day stepped from a car of Greenville Traction Co. at the corner of North and Main Sts. thinking I was at the post office, and for the present medical service rendered hereby release the Greenville Traction Co. from all claims for damages, for personal injuries or otherwise, arising from this fall. [Signed] Ada McKittrick. Witness: H. R Fothergill." The plaintiff served a reply, alleging that she had no recollection of signing the release; that if she signed it, she did so a few minutes after her injury, and while she was in a dazed and semiconscious condition, and when she did not know what it was; "that if she signed any paper, it was obtained by defendant's fraud and imposition; and that nothing was paid on her account thereof and plaintiff prays that the said written statement, if any exists, be set aside, and be declared to be null and void and of no effect." It is further alleged in the reply that the plaintiff did not know, until 23rd March, 1908, long after she had commenced her action, that defendant had paid Dr. Earle for medical services of the value of $1, rendered to her, and that she immediately tendered the sum of $1 to the defendant's attorney, and on the following day made the tender in writing. The last paragraph and the prayer of the reply are as follows: "The plaintiff alleges that said tender of $1 was made at the earliest moment when plaintiff discovered that defendant had paid for the services rendered by Dr. C. B. Earle. Plaintiff further alleges that she never saw, until said March 23, 1908, the alleged release, and has not now, and never had, any recollection of signing the same, or of hearing the contents read, and no proposition was made to her by any person that medical services would be rendered to her, if she would consent to release her claim for injuries. Plaintiff further alleges that she assumed that said medical services were rendered to her by Dr. C. B. Earle on her own account, or as a mere gratuity, to a female person who had been suddenly and unexpectedly injured. Wherefore plaintiff prays that said release be set aside and declared to be entirely null and void."

The plaintiff was asked by her counsel, "Do you know anything about signing this release?" and answered "No, sir; I don't know anything about it." On cross-examination, she testified further as follows: "Q. What did the doctor do to you at the office? A. He washed the mud off me the best he could. Q. What else--did he say anything to you? A. He told me to go home, and if I needed him to send after him; that he was the doctor to treat all who got hurt on the cars. Q. He told you he did not think you would need him? A. He told me if I needed him to let him know. Q. Did you set down in a chair in his office? A. Yes, sir. Q. Where did you sit? A. On the place where they laid me out to examine me. Q. He laid you on a place there to see if you were injured? A. Yes, sir. Q. Did he give you any medicine at all? A. Not that I remember of. Q. You remember his taking you in there and washing your face, do you? A. Yes, sir. Q. And you remember his...