Harrison v. Southern Railway Co. , 131 S.C. 12 ( 1925 )

March 6, 1925. The opinion of the Court was delivered by During September, 1923, the plaintiff was a passenger on one of the trains of the defendant. There was a derailment of the train, and the plaintiff was injured. Some days after the accident she executed a release for $10, holding the defendant harmless from any other claims or demands.

The exceptions charge error on the part of the trial Judge as follows: (1) Refusal of motion for nonsuit; (2) refusal of motion to direct verdict; (3) error in charge; and (4) refusal to grant a new trial.

Under the view which we take of this case, it is only necessary to consider the alleged error in refusing to grant the nonsuit. The case of Levister v. Railway, 56 S.C. 508;35 S.E., 207, supported by the later cases of McDowellv. Railway, 113 S.C. 399; 102 S.E., 639, andBrown v. Lumber Co. (S.C.), 122 S.E., 670, appears to be conclusive of this issue. See, also, McKittrick v. GreenvilleTraction Co., 84 S.C. 275; 66 S.E., 289. Riggs v.Home Mut. Fire Protection Ass'n., 61 S.C. 448;39 S.E., 614; and Treadway v. Union Buffalo Mills Co., 84 S.C. 41;65 S.E., 934.

The respondent, however, makes two contentions — one that the consideration paid at the time the release was executed was tendered to the defendant three months before the trial; and the other that the defendant was guilty of fraud in obtaining the signature of the plaintiff to the release. If the attorneys for the plaintiff had been in ignorance of the release, and had drafted their complaint without mention of it, then they would have had a perfect right to make tender of the consideration after the complaint was served. If the first knowledge they obtained of the release was by the answer of the defendant, they would still have had that right. The right of the defendant to have the plaintiff reply to this new matter would then have been controlled by the rule set forth in the McDowellCase, referred to above. But there was no offer to return the consideration before the suit was brought, although the fact of the release was well known to the plaintiff, and actually alleged in her complaint. Nor does the rule mentioned in the McDowell Case apply, for the reason that no new matter was set up in the answer. Both complaint and answer mentioned the release.

In regard to the allegations of fraud made in the complaint, we may say that they were entirely insufficient to warrant any testimony pertaining thereto. See Gem Chem. Co. v. Youngblood, 58 S.C. 56;36 S.E., 437. But aside from this we fail to see any evidence of fraud on the part of the defendant. It is claimed that the release was not read over to her, and this was a fraud practised on her by the defendant. In the case of Colt Co.v. Freeman, 124 S.C. 211; 117 S.E., 351, the following ruling of the Circuit Judge was approved:

"Now, in the law, people must read their contracts. * * * If he cannot read, he must try to find some one to read it for him," etc.,

— thus disposing of a similar charge of fraud.

As the motion for nonsuit should have been sustained, the judgment of the lower Court is reversed.

MESSRS. JUSTICES WATTS, FRASER and MARION concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE T.P. COTHRAN did not participate.