Medlin v. Vanderbilt

The opinion of the Court was delivered by Mr. Chieb Justice Gary. 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 jpending 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 to1 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 *259 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. “(3) 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 *260 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 case, 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 *261 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. Mr. Justice Watts and Mr. Acting Associate Justice R. O. Purdy concur. Messrs. Justices Coti-iran and Marion dissent.