Briley v. . Roberson

ClakksoN, J. At the close of plaintiff’s evidence the defendants in the court below made a motion for judgment as in case of nonsuit. N. C. Code, 1935 (Michie), see. 567. The court below granted the motion of defendants and in this we think there was error. The evidence which makes for plaintiff’s claim, or tends to support his cause of action, is to be taken 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 plaintiff in the court below, in the former action, was granted “a voluntary nonsuit.” N. C. Code, supra, sec. 415, is as follows: “If an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, the plaintiff, or, if he dies and the cause of action survives, his heir or representative may commence a new action within one year after such nonsuit, reversal, or *299 arrest of judgment, if tbe costs in tbe original action bave been paid by tbe plaintiff before tbe commencement of tbe new suit, unless tbe original suit was brought in forma pauperis.” In Chappell v. Ebert, 198 N. C., 515 (576), is tbe following: “It is not enough, to sustain a plea of res judicata, that tbe former suit between tbe same parties, concerning tbe same subject matter, should bave been nonsuited on its merits, but, in addition, tbe evidence in tbe two cases must be tbe same or substantially tbe same.' Hampton v. Spinning Co., ante, 235.” Ingle v. Cassady, 211 N. C., 287. In Slade v. Sherrod, 175 N. C., 346 (348), we find: “However that may be, tbe plaintiff is not estopped by bis pleadings in tbe first action, for there was no judgment, but merely a voluntary nonsuit.” N. C. Practice & Procedure in Civil Cases (McIntosh), p. 700, sec. 627. On tbe present record tbe plaintiff bad a right to institute tbe present action. In Caldwell v. Ins. Co., 140 N. C., 100 (101), tbe facts were: “Tbe testimony on tbe part of plaintiff tends to show that she is an illiterate colored woman, having ten (10) children.” At pp. 104-5, tbe Court said: “She narrates her trials in her own simple and natural way, showing that she was bewildered in tbe intricate mazes and confusing obscurities of life insurance policies. In this respect she is not singular. In tbe only way open to her she was constantly protesting that something was wrong about her insurance. She does not appear to bave received much light from tbe source to which she went and was entitled to go. . . . She proved an excellent character; her testimony both in manner and matter was well calculated to carry conviction to tbe minds of tbe jurors. Tbe plaintiff is evidently one of tbe few remnants of a type of her race illustrating its highest virtues. In tbe simple duties of life incident to her station, she exhibits a store of saving common sense, when sought out and invited by an insurance agent to visit bis office and discuss tbe most intricate, promising and sometimes disappointing mode of investing surplus earnings, she tells tbe agent that she knows nothing of it, and will know nothing when be has illuminated tbe subject, it is not strange that she gets into trouble. She could not read tbe policies and it is no serious reflection upon her intelligence to surmise that if she could bave done so, she would have been very much wiser. . . . When, however, tbe appeal is made to that fear which so constantly throws its dark shadows over human life, poverty in old age — and tbe assurance is given, as found by tbe jury, that at tbe end of ten years she could draw out her claim, she consents to ‘be written up.’” Dunbar v. Tobacco Growers, 190 N. C., 608 (610); Hinton v. West, 207 N. C., 708. In Waddell v. Aycock, 195 N. C., 268 (269), it is written: “That while parol trusts are recognized, and under certain conditions are *300 upheld in our jurisprudence, iu the absence of fraud, mistake, or undue influence, they cannot be engrafted in favor of the maker upon a warranty deed conveying to the grantee an absolute and unqualified title in fee. Gaylord v. Gaylord, 150 N. C., 222; Tire Co. v. Lester, 192 N. C., 642.” We think the allegations and proof of fraud sufficient to be submitted to the jury. The plaintiff was an old, feeble and illiterate Negro of good character. N. C. Code, supra (Limitations), sec. 441, in part, is as follows: “Within three years- — -(9) For relief on the ground of fraud or mistake; the cause of action shall not be deemed to have accrued until the discovery by the aggrieved, party of the facts constituting the fraud or mistake.” We think the evidence sufficient to be submitted to the jury on the aspect of the statute of limitations. As the case goes back for trial, we will not emphasize the evidence on the different disputed views. It is sufficient to say that the matter should be submitted to a jury. For the reasons given, the judgment of the court below is Reversed.