Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-11-03

Isl supreme court OIL NORTH CaTOllnC-
October, 1899.
WHERE THE DEFENSE OF A RAIL-
ROAD COMPANY TO A SUIT FOR
PERSONAL INJURIES. is THAT
PLAINTIFF EXECUTED A RE-
LEASE AND PLAINTIFF CLAIM
ED THE RELEASE TO HAVE
BEEN OBTAINED BY FRAUD,
BUT INTRODUCED NO EVIDENCE
ON THAT SUBJECT, THE COURT
SHOULD NOT SUBMIT THE CUES
TIoN OF FRAUD TO THE JURY.
AS THERE WAS NO EVIDENCE
TENDING TO PROVE 1T.
The whole case appears from the
opinion of the Court.
The Court says:
This action was commenced for the
recovery OF damages for an injury to
the person OF the plaintiff caused by
the alleged negligence of the defend
ant company, and the jury found all
the issues favorably to the plaintiff. One
oil the defenScs set up in the answer
was the release of the defendant and
the satisfaction OF the plaintiffs claim.
Iho plaintiff filed a. replication to that
defense, and averred that the paper
writing which contained the release
was procured through the fraud Of the
defendant. Upon that phase OF he case
the fourth Issue. lis the paper writing
dated December IS. 1894 relied on by
defendant as n release or accord and
satisfaction, the contract of plaintiff 2"
was submitted to the jury The defend
ant appeal contains exceptions only
to the charge OF his honor on that is
sue. The courts instruction was this:
IF the jury find THAT the plaintiff sign
fIir,f Nr1,f f,,. -
poses therein set forth, without any
fraud or Misrepresentation on the part
or the defendant or It's agent, Missel
that they should answer the fourth is
sue, fcs. Upon II most careful exam
nation of the whole evidence, we fail
10 md n. scintilla as to any fraudu-
lent conduct on The part of Misscl the
agent of the defendant company. The
plaintiff himself. as n witness, did not
make any charge or intimatson that
MISSED practlced any deceit or fraud
upon him I'm the execution of The re-
tease or In it's considcrati ion IT Is true
he said that nc did not know what the
paper was when he signed 1t; that MIR.
MISSED had been keeping his money and
his account with the defendant; that
dle had great confidence in Missel; that
Mlssei brought the paper to him to sign
and he signed it; but he did not testify
that the paper writing did not contain
tHc coil'dct anu agreement between
him ana the company. or that he wish
cd even then to repudiate ii. Nor did
the plaintiff testify that he was not in
formed of the agreement and release
set out In the paper writing before he
executed 1t. Mfsscl testified that the
terms OF the settlement were fully Como
into between him and the plaintiff lust
Immediately before the plaintiff signed
the receipt. and the plaintiff did not
contradict the statement. The testimo-
ny of the PLAINTIFFS wife added moth
ing to the strength of his case. She
said that MISSED brought the account
and receipt to the plaintiff, saying:
There was an itemiZed statement of
your account. and a receipt and gave
him the money and statement of the
account" And she said, further, that
neither paper was read by the plaintiff.
But certainly. on the face of that
statement. there was no fraud on the
part of Missel, and nothing tending to
show that the plaintiff had not been in
dormed by MISSED Of the-eeHte44tt s Of -ttti,e
paper writing before he signed It, The
instruction of his honor was erroneous:
Tor there was no evidence tending To
prove fraud on the part Of the defend
ant In the execution of the release. New
trial.