Settee v. Charlotte Electric Ry. Co.

• Citation: 88 S.E. 734,171 N.C. 440
• Decision Date: 03 May 1916
• Docket Number: 448.
• Parties: SETTEE v. CHARLOTTE ELECTRIC RY. CO.
• Court: United States State Supreme Court of North Carolina

88 S.E. 734

171 N.C. 440

SETTEE v. CHARLOTTE ELECTRIC RY. CO.

No. 448.

Supreme Court of North Carolina

May 3, 1916

Appeal from Superior Court, Mecklenburg County; Carter, Judge.

Action by Ellen Settee against the Charlotte Electric Railway Company. Judgment for defendant, and plaintiff appeals. No error.

The charge, in an action for personal injuries defining fraud alleged by plaintiff as ground of avoidance of a release held proper and sufficiently full and explicit.

The instruction on fraud, referred to in the opinion is as follows:

"That if the jury find as a fact from the evidence that the release set up by the defendant in its answer was secured from her by the agent of defendant by representing to her that the company desired to help her on account of said injury, and if he did not read or explain said paper to her, and if she could not read at the time, but merely write her name, and signed the same to the bottom of the paper under the representation of said agent that the company wanted to help her, and she did not understand the purport of the paper, or that it was intended as a release of her claim against the defendant, and if the defendant's agent handed her a check for $25, and did not explain to her that it was intended as a full settlement of her claim, and if she carried said check back to the defendant, and has never cashed same, then the jury should answer the second issue, Yes.

"That, if the jury find as a fact from the evidence that the plaintiff was an old, ignorant woman, unable to read, and if defendant's agent secured her signature to the paper set up in the answer upon the representation that the company desired to help her, without stating the nature of the paper, or reading same to her, and without informing her that said paper was intended as a release of her claim against said defendant for damages on account of her injury, and if the plaintiff was deceived thereby, and would not have signed said paper if she had been informed by said agent that it was a release of her claim for injuries against said defendant, then the jury should answer the second issue, Yes.

"That, if the jury find as a fact from the evidence that the $25 consideration paid for the release set up by defendant was grossly inadequate, then this would be a circumstance which the jury may consider with other evidence, if any, in passing upon the second issue as to fraud and undue advantage in procuring the release; and, if the jury find as a fact from the evidence that the plaintiff was an old, ignorant woman, unable to read, and if defendant's agent secured her signature to the paper set up in the answer upon representation that the company desired to help her, without stating the nature of the paper or reading same to her, and without informing her that said paper was intended as a release of her claim against said defendant for damages on account of her signature, and if the plaintiff was deceived thereby, and would not have signed said paper if she had been informed by said agent that it was a release of her claim for damages against said defendant, then the jury should answer the second issue, Yes.

The plaintiff brought this action to recover damages for personal injuries alleged to have been caused by defendant's negligence, which consisted in permitting an iron frog to be left in a street of Charlotte. Plaintiff, while walking on the street stepped on the frog, and her foot was caught in the same and she was injured. The case was here at the last term, and plaintiff then was granted a new trial. 86 S.E. 1050. At the last trial, the jury returned the following verdict:

"(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) Was the release, set out in the answer, secured by undue advantage and fraud, as alleged in the replication of the plaintiff? Answer: No.

(3) What damages, if any, is the plaintiff entitled to recover of defendant? (No answer.)"

Defendant offered as evidence the examination of W. W. Rhodes, a witness who testified for the defendant at the former trial. It was taken down by a stenographer, who testified that it was a correct and literal reproduction of all that the witness said at the time. It appeared that W. W. Rhodes was in Arizona when this testimony was introduced, and had been there for nearly a year, he having gone there for his health. He had been an employé of the defendant, and was such at the time the alleged release of plaintiff was executed. He carried it to her house for her signature. "His salary, though, ceased at the time he left the service of the company." His testimony related exclusively to the signing of the release to the defendant by the plaintiff and what occurred at her home when it was signed. Plaintiff objected to the testimony, the objection was overruled, and plaintiff excepted. The typewritten examination was admitted and read to the jury. The objection was based on its incompetency, its relevancy being admitted. There were other exceptions taken by the appellant which will be considered in the opinion. Judgment was entered upon the verdict, and plaintiff appealed.

J. W. Keerans, of Charlotte, for appellant.

Osborne, Cocke & Robinson, of Charlotte, for appellee.

WALKER, J. (after stating the facts as above).

The precise question involved in the admission of the proof as to the testimony of W. W. Rhodes, a witness for the defendant at the former trial of this case, has never before been considered by this court. But it is thoroughly well settled, as it seems, by the great weight of authority and numerous precedents, that evidence of the kind is admissible, when the witness is absent from the state and not within the jurisdiction of the court. We need not decide as to whether a temporary absence will render the evidence competent, as, in this case, it appears that the witness is absent permanently, or, at least, for such a prolonged or indefinite period that his return is merely contingent or conjectural. He may now fairly be considered as a nonresident in this state. The rule, in regard to such evidence, which has generally been followed, is thus stated in 1 Greenleaf on Evidence (16th Ed.) § 1639:

"The death of the witness has always, and as of course, been considered as sufficient to allow the introduction of his testimony. The absence of the witness from the jurisdiction, out of the court's process, ought also to be sufficient, and is so treated by the great majority of courts."

5 Enc. of Evidence, p. 904, says:

"The absence of the witness from the state is a sufficient ground for admitting the testimony" (citing in the notes many cases which support the text).

The following authorities sustain the rule: Wigmore on Ev., § 1404, Stephens' Digest of Evidence (1886) art. 32 Wharton on Ev. § 178, 1 Atkyns Rep. (1737), p. 444, Birmingham Nat. Bank v. Bradley (Ala.) 30 So. 546, Minneapolis Mill Co. v. Minneapolis & St. R. Co., 51 Minn. 304, 53 N.W. 639, Reichers v. Dammeier, 45 Ind.App. 208, 90 N.E. 644, Kolodrianski v. Am. L. Works, 29 R.I. 127, 69 A. 505, Giberson v. Patterson Mills, 187 Pa. 513, 41 A. 525, and A., T. & S. F. Ry. Co. v. Baker, 37 Okl. 48, 130...