West v. Seaboard Air Line Railway Co.

MANNING, J.

In view of the opinion of this Court delivered in the former appeal of this case (151 N. C., 231), it is necessary, in order to sustain a recovery for the plaintiff, that an affirmative response should be made to the third issue, coupled with a negative finding to the eleventh issue. These two issues present the crucial matter of inquiry, the negligence of defendant in permitting its freight train to crash into the derailed and wrecked passenger train being admitted. This brings us to an examination of the evidence offered upon these two questions; and giving to it the most favorable construction for the plaintiff, the conclusion is irresistible that it is wholly insufficient to justify a finding upon either issue in plaintiff’s favor. At best, it raises not more than a conjecture that defendant’s agent making the settlement with plaintiff had notice of plaintiff’s mental incapacity, assuming that such incapacity existed at that time; and it does not raise even a conjecture that the settlement made with. Mm was unjust, unfair, or inequitable. TLe plaintiff’s itemized claim, as presented by Mm to the defendant, which was approved by those interested in his welfare, was for $1,603.22; the defendant paid him $1,511.61, the difference being less than $100, or about 6 per cent. At that time the plaintiff thought, and those interested in his welfare considered the settlement satisfactory, fair, and just. There is absolutely, no evidence that defendant was striving to drive a hard bargain; no suggestion of imposition, xxndue influence, or fraud, except that fraud, as plaintiff contends, which arises from contracting with a mental defective with notice of his mental incapacity. It will be observed that none of the plaintiff’s family or friends or Ms attorney thought at that time that plaintiff’s mental incapacity was so great as to suggest the advisability of the appointment of a guardian for him; this seems not to have occurred to them until nearly five years thereafter and after the former opinion of this Court in this case had been certified down; at least, we find no suggestion of it in the evidence.

The narrative of the circumstances of the wreck, of the correspondence between plaintiff and defendant’s agent, of what took place at the time of and just prior to the settlement, of what he said and did and what Stanley said and did, given by plaintiff himself, who was examined as a witness in Ms own behalf, show an intelligent comprehension of the transaction and the contract, though detailed nearly five years thereafter and by a man who was adjudged non compos mentis at the time he was testifying.

At the time of the settlement, 9 October, 1905, more than a year after the wreck, not only did plaintiff, but his physician and his family, entertain the opinion that plaintiff would recover, but that he had in fact so far recovered that he would be able in cold weather to resume his former position as passenger conductor. The plaintiff, in Ms letter of 7 October, 1905, wrote that he was then and had been since 1 October, able to resume Ms duty as passenger conductor; and his physician, Dr. Ash-craft, wrote on 10 October, that “So far as I can see, he (Conductor West) is in as good health as he- has been for the past two or three years. I think he will come out all O. K.”; and he explained in his testimony that O. 3L meant that he would be all right; that at the time he wrote the letter just quoted from, he wrote it for the purpose of informing defendant’s superintendent that, in his opinion, the plaintiff was then as capable of running a train as conductor as he was before the wreck; that at that time his condition appeared normal to the outsider — the layman; and that though he had, at the time of the trial, changed his opinion, this change was largely due to the subsequent development of the plaintiff’s disease. It also appeared that plaintiff went where he pleased, taking occasional trips from home unattended; that he wrote defendant to furnish him passes for these trips; that he went to Portsmouth to make the settlement unattended.

It cannot be said that, because defendant’s agent, making the settlement, asked the plaintiff at that time if he knew the superintendent entertained some doubt of his fitness on account of his physical, mental, and nervous condition, to resume his duties as passenger conductor, that this question is sufficient to support the allegation that such agent had notice of plaintiff’s want of capacity to make a contract or to make the settlement of his claim against the defendant that he did make on that day. It is a matter of common knowledge that every man with the mental capacity to make a contract has not the mental capacity to perform the many and delicate duties of a conductor of a passenger train. To make such a contract as the plaintiff made cannot be said, under the rulings of this Court and measured by the standard of capacity universally recognized, to require any great amount of mental capacity, especially in the absence of any suggestion of misrepresentation, imposition, or undue influence; while to discharge the many, varied, and deli-cat e duties of conductor of a passenger train requires at all times more than the average intelligence, and especially a nervous condition not easily irritated or excited.

The correspondence between plaintiff and defendant’s agent, in reference to the adjustment of his claim, extended over a period of more than a year, and all the letters, the same as at Iho former trial, were offered in evidence by one side or the other, and. their x>ertinency to the phase of the case now under consideration is commented upon in the former opinion of the Court.

The additional fact appearing at the last trial, that the plaintiff himself did not, in fact, compose and prepare all these letters, but was aided by his wife, his attorney and two other friends, each, in drafting the letters, can have no effect in determining the issues now under consideration, for it is not suggested that such fact was communicated to the defendant’s agent having in charge the adjustment of plaintiff’s claim; on the contrary, it is evident from the testimony that the purpose of plaintiff and his friends was to conceal the fact of such aid from defendant’s agent. It is insisted that the conversation of Dr. Ashcraft with Superintendent Berkley in January or February, 1905, in which Dr. Ashcraft expressed the opinion that the plaintiff would not again be mentally capable of resuming his position as conductor, was notice to the defendant and must have been communicated by Superintendent Berkley to the claims agent of defendant. Assuming this, the settlement was not made until October, some nine months thereafter, and not until the claims agent was assured by Dr. Ashcraft, in his letter, that the plaintiff would be all 0. II., and by plaintiff’s letter that Dr. Ashcraft had so informed him. If plaintiff’s family, friends, and physician believed, at that time, that plaintiff was so mentally incapacitated by the injuries received in the wreck, or from other causes, that he was rendered non compos mentis, it is inconceivable that they should have permitted him to go to Portsmouth alone to adjust a matter of such moment to him and to them, and without any warning to the defendant’s agent of his mental condition, a condition that was not observable to the outsider or layman, to use the words of Dr. Ashcraft.

The legal principles controlling the determination of the phase of the case presented by the third and eleventh issues are stated in the former opinion of this Court and the cases therein cited. It is unnecessary to restate them. Both the sanity of the plaintiff and his apparent mental condition, and the fairness, propriety, and equitableness of the settlement of October, 1905, must be determined by conditions then existing, of which defendant’s agent was fixed with notice or knowledge. This is not controverted by plaintiff’s counsel in their able and well-considered brief, and such is the ruling of the Court in the former opinion. It is further sustained by the following additional authorities: Wells v. Roger Wheel Co. (Ky.), 114 S. W., 737; Cleveland C. C. and St. L. Ry. Co. v. Hilligoss, 86 N. E., 485; Allen v. Ruland (Conn.), 117 Am. St., 146; Sprigg v. Sprigg’s Trustee (Ky.), 90 S. W., 985.

Having reached the conclusion that his Honor should have allowed the defendant’s motion to nonsuit the plaintiff, made at the close of plaintiff’s evidence and renewed at the close of all the evidence, and that his refusal to grant this motion was error, it becomes unnecessary to consider the other interesting questions presented by the other exceptions. In disallowing the motion to nonsuit, there was error, for which the judgment is reversed. The nonsuit will be entered in the court below.

Reversed.