McCall v. Toxaway Tanning Co.

Hoke, J., after stating tbe case: In Gray v. Jenkins, 151 N. C., 80, tbe last expression of tbe court on tbe question directly presented, tbe judge delivering tbe opinion said: “It is true tbat in an action of tbis character tbe false statements must be sucb tbat they are reasonably relied upon by tbe complaining party. It is also true tbat when an adult of sound mind and memory, and wbo can read and write, signs or accepts a formal written contract; be is ordinarily bound by its terms. Floars v. Ins. Co., 144 N. C., 232. In sucb case it is very generally beld tbat a man should not be allowed to close bis mind to facts readily observable and invoke tbe aid of courts to upset solemn instruments and disturb and disarrange adjustments so evidenced, when tbe injury complained of is largely attributable to bis own negligent inattention. “Older cases have gone very far in upholding defenses resting upon tbis general principle, and as pointed out in May v. Loomis, 140 N. C., 357-358, some of them have been since disapproved and are no longer regarded as authoritative; and tbe more recent decisions on tbe facts presented here are to tbe effect tbat tbe mere signing or acceptance of a deed by one wbo can read and write shall not necessarily conclude as to its execution or its contents, when there is evidence tending to show positive fraud, and tbat tbe injured party was deceived and thrown off bis guard by false statements designedly made at tbe time and reasonably relied upon by him. Some of these decisions, here and elsewhere, directly bold tbat false assurances and statements of tbe other party may of themselves be sufficient to carry tbe issue to tbe jury when there has been nothing to arrest attention or arouse suspicion concerning them.” Citing Walsh v. Hall, 66 N. C., 233; Hill v. Brower, 76 N. C., 124; May v. Loomis, 140 N. C., 350; Griffin v. Lumber Co., 140 N. C., 514. ■This, we think, correctly states tbe doctrine relevant to tbe inquiry, and its proper application to the case requires tbat tbe plaintiff be awarded a new trial. There was evidence on tbe part of plaintiff tending to show tbat plaintiff bad been injured by defendant’s negligence, and while be was still suffering pain and anxiety from bis hurt-, be was sent for by J. S. Silverstein, vice president and general manager of defendant company, and was induced to sign tbe release in question by false and fraudulent representations on tbe part of said Silverstein to tbe effect tbat tbe release in question was a receipt to enable Silverstein to obtain an amount of *651 insurance arising by reason of tbe injury, and tbat same bad no bearing on bis claim for damages. If sucb representations were made under circumstances calculated to mislead plaintiff, and did mislead bim, tbe effect under tbe doctrine referred to would be to avoid tbe release, whether plaintiff at tbe time bad mental capacity to understand its purport or not. Tbe charge of bis Honor, therefore, contained error to plaintiff's prejudice, in imposing on plaintiff more exacting conditions than tbe law requires. Tbe jury were told, in effect, tbat in order to avoid tbe release it was incumbent on plaintiff to establish both actual fraud and mental incapacity. • For tbe error indicated, there will be a new trial on all tbe issues, and it is so ordered. New trial.