#### J. B. McCALL v. TOXAWAY TANNING COMPANY.

(Filed 25 May, 1910.)

Damages — Personal Injury — Written Release — Fraudulent Inducements — Calculate4 to Deceive — Evidence Sufficient.

The defendant in an action to recover damages for personal injury alleged by reason of its negligence, sets up plaintiff’s written release in defense. There was evidence for plaintiff tending to show that soon after the injury and when plaintiff was suffering from its effect, defendant’s manager sent for him and induced the execution of the release by falsely representing that it was only a receipt necessary for defendant to have in order to collect insurance money due to it by reason of the *649injury, and that it did not affect plaintiff’s claim: Iielcl, evidence sufficient to avoid the release,' if the jury should find, under the circumstances, that the representations were calculated to and did deceive the plaintiff, whether he at the time had mental capacity to understand it or not; and it was error, therefore, to put the burden upon plaintiff of showing both actual fraud and mental incapacity.

Appeal from Joseph 8. Ada-ms, J., at August Term, 1909, of TRANSYLVANIA.

Civil action to recover damages for alleged negligent injury.

Tbe plaintiff alleged, and offered evidence tending to sbow, tbat be bad suffered physical injury caused by negligence of defendant company. Defendant denied negligence and pleaded a release of all claim for damages, signed by plaintiff, and offered evidence tending to support tbe defense. Plaintiff replied, alleging tbat tbis release was obtained by false and fraudulent statements as to its contents on tbe part of one J. S. Silver-stein, vice president and general manager of defendant company, and alleged further, tbat at tbe time be signed tbe release be was in such a condition of bodily suffering and mental anxiety that be was not able to understand or comprehend tbe meaning or effect of same; and offered evidence tending to sbow tbe false representations, etc.

On tbe sixth issue, tbat as to obtaining tbe release by fraud, tbe court, among other things, charged tbe jury as follows:

“Before you can find tbe sixth issue ‘Yes,’ you must be satisfied by a preponderance of evidence tbat at tbe time it was signed tbe plaintiff did not understand what be was signing, and tbat be was misled by fraudulent misrepresentations of defendant, and tbat be was in such a condition from ignorance or mental and physical suffering tbat be was at tbe time incapable with reasonable care and caution to understand tbe contents of tbe paper.

“If, however, you are satisfied by tbe greater'weight of tbe evidence, tbat the defendant, through its agent, Silverstein, represented to plaintiff tbat plaintiff was merely releasing an insurance company and was not releasing tbe defendant company, and tbat tbe plaintiff was in such a condition of suffering, from tbe effects of bis wounds, tbat be could not comprehend tbe meaning of tbe writing, then you should find tbis issue Yes.’ ”

Tbe jury rendered a verdict tbat plaintiff was wrongfully injured by defendant’s negligence and damaged thereby $150; tbat plaintiff bad released the claim, and said release was not procured by fraud. ' Judgment for defendant, and plaintiff excepted and appealed.

*650 George A. Shuford and Brown Shepherd for plaintiff.

Welch Galloway for defendant.

Hoke, J.,

after stating tbe case: In Gray v. Jenkins, 151 N. C., 80, tbe last expression of tbe court on tbe question directly presented, tbe judge delivering tbe opinion said: “It is true tbat in an action of tbis character tbe false statements must be sucb tbat they are reasonably relied upon by tbe complaining party. It is also true tbat when an adult of sound mind and memory, and wbo can read and write, signs or accepts a formal written contract; be is ordinarily bound by its terms. Floars v. Ins. Co., 144 N. C., 232. In sucb case it is very generally beld tbat a man should not be allowed to close bis mind to facts readily observable and invoke tbe aid of courts to upset solemn instruments and disturb and disarrange adjustments so evidenced, when tbe injury complained of is largely attributable to bis own negligent inattention.

“Older cases have gone very far in upholding defenses resting upon tbis general principle, and as pointed out in May v. Loomis, 140 N. C., 357-358, some of them have been since disapproved and are no longer regarded as authoritative; and tbe more recent decisions on tbe facts presented here are to tbe effect tbat tbe mere signing or acceptance of a deed by one wbo can read and write shall not necessarily conclude as to its execution or its contents, when there is evidence tending to show positive fraud, and tbat tbe injured party was deceived and thrown off bis guard by false statements designedly made at tbe time and reasonably relied upon by him. Some of these decisions, here and elsewhere, directly bold tbat false assurances and statements of tbe other party may of themselves be sufficient to carry tbe issue to tbe jury when there has been nothing to arrest attention or arouse suspicion concerning them.” Citing Walsh v. Hall, 66 N. C., 233; Hill v. Brower, 76 N. C., 124; May v. Loomis, 140 N. C., 350; Griffin v. Lumber Co., 140 N. C., 514.

■This, we think, correctly states tbe doctrine relevant to tbe inquiry, and its proper application to the case requires tbat tbe plaintiff be awarded a new trial.

There was evidence on tbe part of plaintiff tending to show tbat plaintiff bad been injured by defendant’s negligence, and while be was still suffering pain and anxiety from bis hurt-, be was sent for by J. S. Silverstein, vice president and general manager of defendant company, and was induced to sign tbe release in question by false and fraudulent representations on tbe part of said Silverstein to tbe effect tbat tbe release in question was a receipt to enable Silverstein to obtain an amount of *651insurance arising by reason of tbe injury, and tbat same bad no bearing on bis claim for damages. If sucb representations were made under circumstances calculated to mislead plaintiff, and did mislead bim, tbe effect under tbe doctrine referred to would be to avoid tbe release, whether plaintiff at tbe time bad mental capacity to understand its purport or not.

Tbe charge of bis Honor, therefore, contained error to plaintiff's prejudice, in imposing on plaintiff more exacting conditions than tbe law requires. Tbe jury were told, in effect, tbat in order to avoid tbe release it was incumbent on plaintiff to establish both actual fraud and mental incapacity. •

For tbe error indicated, there will be a new trial on all tbe issues, and it is so ordered.

New trial.