163 Ga. 734 | Ga. | 1927
1. The petition as amended alleged a cause of action, and the judge did not err in overruling the demurrer.
2. Walter Hixon, son of plaintiff, a non-expert witness, testified that plaintiff, at the time of signing the contract releasing the defendant from liability, in his opinion was not normal or in a condition to transact business, giving as his reasons for such opinion that “her husband had just got killed, and she had just been over there and seen him, and so soon after the accident he [defendant’s claim agent] came out there.” Another witness testifying as a non-expert gave evidence of similar import, giving as her reasons for the opinion: “When I reached there, Mrs. Hixon came out on the porch, and I said to her that I did not know anything I could do, except to come over and offer my sympathy, but first I wanted to tell her not to go to the station and see his remains, and she screamed out and said, ‘I have already seen them, there is a little pile there and a little pile here, and they would not let me pick up his hand, and when I left there they were picking him up with a shovel.” Held, that the court erred in ruling out this testimony.
3. The court did not err in rejecting testimony as to the apparently satisfied manner of the defendant’s claim agent after he had obtained the settlement.
4. The court having ruled out the testimony of a witness as to her opinion of the mental condition of plaintiff at the time she signed the contract of release, there was no error in subsequently ruling out the answer of the same witness, on cross-examination, to the qdestion: “Why did you witness this release, if you thought that Mrs. Hixon was not in any condition to transact business?”
5. The petition having alleged that as a part of the “release contract” the defendant had paid the funeral expenses, and that the amount thereof had. been tendered back to the defendant before instituting
G. Under all of the evidence it was a question for the jury to decide whether or not the railroad company was negligent, and whether or not the plaintiff’s husband was negligent so as to' reduce the amount of damages, or whether his conduct showed such want of ordinary care for his own safety as would defeat a recovery for any amount.
7. The evidence as to the circumstances and scene of the mangled remains of the plaintiff’s husband as viewed by her but a short while before signing the contract was most unusual, and it was for the jury to decide whether at the time of signing the release the plaintiff was in a condition to understand the contract and to comprehend its effect, y or whether, in view of the calamity which had happened to her and its shocking details, she was deprived of the use of her mental faculties to such an extent as to prevent her from understanding the contract into which she entered.
8. Tt was also a question for the jury whether or not, in view of the circumstances to which reference has been made, and the wife’s inability to bear the expense of the funeral, the statement of the defendant’s representative that she had no case against the railroad company did not amount to duress constraining the plaintiff to sign the contract as a part of the consideration of which her husband would receive burial.
9. It was erroneous to grant a nonsuit.
Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.
