Appeal
from Richland County Court; M. S. Whaley, Judge.
Action
by George F. Medlin against Arthur T. Vanderbilt and another
as receivers of the Southern Cotton Oil Company, and the
Southern Cotton Oil Company. From a verdict for plaintiff
defendants appeal. Affirmed.
Cothran
and Marion, JJ., dissenting.
Thomas & Lumpkin, of Columbia, for appellants.
John E
Edens and J. Hughes Cooper, both of Columbia, for respondent.
GARY,
C.J.
The
following statement appears in the record:
"The plaintiff, George F. Medlin, an employee of the
Southern Cotton Oil Company, was injured in his foot while
working in the Columbia Mill of the defendant company on
October 30, 1923. Thereafter plaintiff filed his complaint in
the county court of Richland county, claiming damages for
such injury in the sum of $3,000.
The defendant company had, on March 3, 1924, been placed in
the hands of receivers, and complaint was filed, making both
the company and its receivers parties defendant to this
action.
Defendants duly filed their answer, setting up three
defenses, a general denial, contributory negligence on the
part of the plaintiff, and a release signed by plaintiff and
his wife. The last defense being in the nature of new matter
in the pleadings, the plaintiff thereupon replied in due
time, alleging that such release was executed without his
knowledge or consent, and further alleging that the
consideration for such release was upon the understanding
that it was received as a temporary adjustment pending a
final agreement or settlement regarding the injuries
received; further alleged that such release was never read
over to him and that he was illiterate and unable to read or
write his name.
At the conclusion of plaintiff's testimony defendant made
a motion for a nonsuit on the ground that no tender of the
consideration passed for the release had been made by plaintiff or his counsel. Plaintiff, by his counsel,
showed an offer of tender, and the record will disclose what
transpired between attorneys of record in the case.
At the conclusion of all testimony defendant again made a
motion for a directed verdict, both on the grounds of no
tender having been made, and also because contributory
negligence had been clearly established on the part of the
plaintiff. Both motions were refused by his honor, the
presiding judge.
The jury returned a verdict for $2,454.05, which was the full
amount claimed, less the amount paid plaintiff and for doctor
and hospital bills, aggregating $545.95."
The
defendant appealed upon the following exceptions:
"(1) Because his honor erred in not finding and holding
that no legal tender of the amount paid by the defendants for
the release set up by defendant had been made by the
plaintiff, and in refusing to grant a nonsuit for that
reason.
(2) Because his honor erred in refusing to charge the jury on
the question of assumption of risks under the plea of
contributory negligence interposed by the defendant.
(3) Because his honor erred in not directing a verdict for
the defendant upon its plea of contributory negligence on the
part of the plaintiff when the uncontroverted testimony
showed that plaintiff was furnished with a safe place in
which to work, thoroughly lighted, and equipped as other
plants and machines of a similar character, and no other
accidents had happened in the particular room where this one
occurred for a period of over 30 years.
(4) Because his honor erred in not directing a verdict on the
motion of defendant when it was admitted by plaintiff that no
undue influence was used and no fraud or overreaching was
shown; the release offered in evidence being good in law and
fact.
(5) Because his honor erred in not directing a verdict for
the defendant on its third defense, sustaining the release
when the testimony of plaintiff's wife clearly showed
that the release was explained to her and that
she was instructed by her husband to sign said release.
(6) Because the verdict of the jury was contrary to the
overwhelming weight of the testimony both as to the execution
of the release and as to the negligence of the plaintiff in
his failure to exercise due diligence and care in the
performance of his duties."
First
Exception. The following appears in the record:
"J. E. Edens, white, one of the lawyers for the
plaintiff, sworn, testified as follows:
A. After receiving the answer from the attorneys for the
defendant, they set up a release, which was new to us; we had
no intimation of it, and I called Mr. Lumpkin over the
phone--
Q. The attorney for the defendant? A. Yes, sir; and told Mr.
Lumpkin that we would have to make a tender, and suggested
did he desire to get in touch with his clients or whether or
not he would accept the money. Mr. Lumpkin told me, in
effect, it would be useless to make a tender; that they would
stand on the release and would not accept or take the money
if we paid it by a check, and, finding they would not accept
it, we did not do a useless thing or make a useless offer.
Since that time we had another talk, and he reiterated he
would stand on the
defense they set up and wouldn't accept the money if we
paid it in any form.
Cross-Examination.
By Mr. Lumpkin: Q. That is a correct statement."
The
cases of Treadway v. Mills Co., 84 S.C. 41, 65 S.E.
934, and Fayssoux v. Ry., 109 S.C. 352, 96 S.E. 150,
show that this exception cannot be sustained.
Second
Exception. The record contains this statement:
"The Court: That ends the tender proposition.
Mr. Lumpkin: We move for a directed verdict on the ground
that there has been--that this release has not been attacked by the evidence of the plaintiff to show any
fraud or deceit or overreaching.
The Court: Take the jury out, Mr. Cooper; I have to discuss
some facts.
(Jury retired.)"
After
the jury returned, the record shows that the following took
place:
"Mr. Lumpkin: As I understand, your honor will charge as
to the assumption of risk in regard to contributory
negligence?
The Court: No, sir; as I understand the cases, the judge
cannot charge on something that is not made an issue, and I
will charge on the pleadings, and, if the Supreme Court wants
to take these two cases and show me where I stand, that is
all right."
It will
thus be seen that his honor, the presiding judge, did not
refuse to construe the pleadings, but stated that he would
thereafter charge upon them, which he did, and there was no
exception to his charge in this respect. This exception is
therefore overruled.
Third,
Fourth, Fifth, and Sixth Exceptions. None of these exceptions
can be sustained, for the reason that the testimony upon
which they rested was susceptible of more than one inference,
and they are therefore overruled.
Affirmed.
WATTS,
J., and PURDY, A. A. J., concur.
COTHRAN
and MARION, JJ., dissent.
PURDY
A. A. J. (concurring).
A
further statement of the facts is unnecessary. The
exceptions, six in number, allege error, in substance: (1) In
holding that there was no tender of the amount paid for the
release, and in refusing to grant a nonsuit for that reason;
(2) because his honor refused to charge the jury on the
question of the assumption of risk, under the plea of contributory negligence; (3) that his Honor erred in
not directing a verdict (a) upon the defendant's plea of
contributory negligence on the part of the plaintiff; and (b)
in not holding that the release was valid and good in law and
in fact.
The
sixth exception is as follows:
"Because the verdict of the jury was contrary to the
overwhelming weight of the testimony, both as to the
execution of the release and as to the negligence of the
plaintiff in his failure to exercise due diligence and care
in the performance of his duty."
Treating
the exceptions in the inverse order, as stated:
The
record does not disclose that there was a motion made for a
new trial, and this exception is overruled. Had there been a
motion for a new trial made and refused upon the ground
stated, there would have been no error in refusing it, as
there was testimony to support the verdict.
The
rule is so well settled that authorities need not be cited
that a person who signs a paper is bound by it, and that a
failure to read it will not relieve the party of the
consequences of signing the paper.
There
are exceptions to this rule. In this case, the trial was had
before a judge of long and varied experience. Medlin and his
wife were shown from the testimony to be ignorant. Medlin was
hurt, and the release was signed when he was in dire straits
and in the act of leaving the hospital and while in an
automobile preparing to leave. The trial judge had all these
things before him and this court cannot say that he erred in
submitting the validity of the release to the jury, and it
was submitted with thoroughness, and the verdict of the jury
was adverse to the defendant.
On the
question of assumption of risk, we do not regard the case of
Betchman v. Railway Co., 75 S.C. p. 68, 55 S.E. 140,
as undertaking to settle the question of pleading the assumption of risk. The following is taken from that
case:
"This action shows that John Betchman was either engaged
in another department of labor from that of the fellow
servants in charge of the train, or that he and they were
engaged in a different piece of work. Therefore their
negligence was not one of the ordinary risks which he assumed
upon entering into the contract aforesaid."
Hence
what was said by the court in reference to pleading the
assumption of risk must be treated as obiter dictum, in view
of the decisions of this court, and particularly in view of
the decisions which have been since promulgated on that
subject. No matter what...
