Puckett v. Dyer

• Decision Date: 14 December 1932
• Docket Number: 494.
• Citation: 167 S.E. 43,203 N.C. 684
• Parties: PUCKETT v. DYER et al.
• Court: North Carolina Supreme Court

167 S.E. 43

203 N.C. 684

PUCKETT v. DYER et al.

No. 494.

Supreme Court of North Carolina

December 14, 1932

Appeal from Superior Court, Mecklenburg County; Cowper, Special Judge.

Action by J. W. Puckett against Jim Dyer and another. From the judgment for plaintiff, defendants appeal.

No error.

Whether injured plaintiff when signing release while in hospital was mentally capable of understanding effect of release held for jury.

This is an action for actionable negligence brought by plaintiff against defendants, alleging damage. The defendant denied liability and set up the defense: (1) "It is admitted that the defendant corporation furnished a car to the individual defendant to be used by him for the business of the defendant corporation and it is alleged by the defendants that the individual defendant, James Dyer, was not on business for the defendant corporation at the times complained of in the complaint;" (2) that the plaintiff was guilty of contributory negligence; (3) a release for $350 and payment of hospital and doctor's bill.

The plaintiff in reply contends: "The plaintiff was unconscious for 6 days; he had a severe injury to his head causing concussion of the brain; that his leg was broken in two places, he was confined to the hospital for 4 weeks and was in such condition physically and mentally that he was unable to pass upon any important matter. That the defendants' doctor and agent calculated what his wages would amount to while he would be in the hospital and wrote it upon the plaster cast upon his leg. He suggested no amount; they told him what he owed him and asked him to sign a paper they had. They did not read the release and if they had plaintiff did not have sufficient mind because of his injury to know the importance of it. Under said circumstances this plaintiff signed something. That the plaintiff further alleges that he was a sick man when he was approached by the defendants in the hospital; that he was under the care of a physician; he was confined to his bed; that he was unable to transact any business, his judgment was impaired by his weakened body and injury to his head, that his signature was procured by the fraud of the defendant's agent and took advantage of plaintiff's distress in the manner above stated. That they also well knew that plaintiff was only a watchman, he got small wage, he had a family to support, he was then disabled, could not earn anything, his family were in distress, he did not know the extent of his injury or the importance of his claim against the defendants, that the $350.00 in no way compensated him for his injury, it was an inconsequential sum compared with his injuries; that the defendants well knew this fact, for it was their doctor treating this plaintiff. That the defendants, by artifice devices, schemes and plans of fraud procured this plaintiff's signature to said release."

The issues submitted to the jury and their answers thereto, were as follows:

"1. Did the plaintiff, at the time of signing the release, introduced in evidence as defendant's Exhibit No. 2, have sufficient mental capacity to understand the nature and legal effect of said release? Answer: No.

"2. Did the plaintiff ratify the said release by accepting and retaining the consideration therefor after having knowledge of the nature and contents of said release? Answer: No.

"3. Was the plaintiff injured by the negligence of the defendant, James Dyer, as alleged in the complaint? Answer: Yes.

"4. If so, was the said James Dyer, at the time, acting within the scope of his employment with the defendant, Orkin Exterminator Company? Answer: Yes.

"5. Did the plaintiff, by his own negligence, contribute to his injury as alleged in the answer? Answer: No.

"6. What damages, if any, is the plaintiff entitled to recover? Answer: $4,150.00."

The court below rendered judgment on the verdict. The defendants made numerous exceptions and assignments of error, and appealed to the Supreme Court. The material ones will be considered in the opinion.

John M. Robinson and Hunter M. Jones, both of Charlotte, for appellants.

G. T. Carswell, Joe W. Ervin, Enos T. Edwards, and Morgan Gilreath, all of Charlotte, for appellee.

CLARKSON J.

At the close of plaintiff's evidence and at the close of all the evidence, the defendants made motions for judgment as in case of nonsuit. C. S. § 567. The court below overruled these motions, and in this we can see no error. It is the well-settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.

The evidence on the part of plaintiff was to the effect: That he was a night watchman at certain plants in Charlotte, N. C., and, in going from one plant to another, on the early morning of July 22, 1931, about 1:30 o'clock, walking east towards the city, 6 or 12 inches from the left-hand curb of Wilkinson boulevard (West Morehead street), a paved street, about 40 feet wide, he was struck from behind, and the signs indicated he was dragged some 60 to 70 feet, about 5 or 6 feet from the left-hand curb, and when found was 2 or 3 feet off the boulevard. He was picked up for dead and taken to and placed in the sanatorium where he remained some 27 days. He was unconscious from Wednesday until Saturday. Plaintiff testified in part: "I don't remember signing a release. I have a vague memory of something being said about a settlement and signing a paper and that is all. I was just conscious enough to know that some one was in there talking about signing a paper. It is just like a dream to me. I don't remember what was said. *** I must have stayed in the hospital two or three weeks after the date of the release. Doctor treated me up until after I came home. *** I do not remember anything having been said about how much the doctor's bill would be."

As to his injury, plaintiff testified, in part: "When I came to my senses enough to know, I was in so much pain and misery I prayed to die. I felt like I'd rather be dead than to suffer that way. The pain was all over me practically, in my left leg, right shoulder and head and I had some trouble with my side. I had a plaster cast on my leg. The cast was on my leg when I left the hospital and stayed there for some time after I left the hospital. I think I wore it four or five weeks after leaving the hospital. *** I got around on crutches. I used the crutches about three months. After I left the hospital and went home, I had no money to amount to anything. *** I worked for four or five months at the rate of three or four hours a day on up until the Spring of the year." The night was damp, foglike, kind of cloudy. The pavement was wet. Plaintiff when picked up was kind of drawn up "lying there still *** he was not moving." Plaintiff's leg was broken in two places.

It was contended by plaintiff that defendant Dyer, at the time of the collision, was violating the following statutes:

N.C. Code 1931 (Michie), § 2621(45): "Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving and upon conviction shall be punished as provided in section 2621(102)."

§ 2621(51): "Upon all highways of sufficient width, except upon one way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow moving vehicle as closely as possible to the right-hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway and except when overtaking and passing another vehicle subject to the limitation applicable in overtaking and passing set forth in sections 2621(54) and 2621(55)." Public Laws 1927, c. 148, § 9.

It was contended by plaintiff that the violation of these statutes was negligence per se and the proximate cause of plaintiff's injury.

This action was brought in the spring of 1932, March 26th. In 15 or 20 minutes after a car had struck plaintiff, Dyer was arrested by a detective of the city of Charlotte, at the home of his brother, and was prosecuted and pleaded guilty as a "hit and run driver." N.C. Code 1931 (Michie), § 2621(71)(a); State v. Durham, 201 N.C. 724, 161 S.E. 398. The evidence was plenary as to negligence on the part of defendant Dyer, which was properly submitted to the jury. In fact, defendants in their brief say: "It is conceded that there is abundant evidence upon the third issue as to the negligence of the said Dyer, and, as none of our exceptions relate to this issue, we will not further discuss the facts in reference thereto." The evidence, under proper instructions by the court below, was submitted to the jury as to contributory negligence, who found for the plaintiff.

As to the liability of defendant Orkin Exterminating Company "It is stipulated that the corporate defendant in July 1931, was engaged in the business of exterminating rats, insects, and bugs. It is also stipulated that in July, 1931, Jim Dyer was an employee of the corporate defendant, was such an employee prior to that time, and has been such an employee since." A car, a Ford roadster, model 30, driven by Dyer, belonged to the defendant company. It was driven by Dyer for the company over...