# Woody v. Carolina Spruce Co.

> Supreme Court of North Carolina · December 3, 1919 · 178 N.C. 591

URL: https://www.frixlaw.com/law-library/cases/9811617

## Case

- **Full name:** G. B. Woody v. Carolina Spruce Company.
- **Court:** Supreme Court of North Carolina
- **Decided:** December 3, 1919
- **Citations:** 178 N.C. 591; 101 S.E. 258; 1919 N.C. LEXIS 511
- **Precedential status:** Published
- **Opinion:** Dissent by Walicer
- **Judges:** Clark, Walicer, Allen
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9811617

## Opinion text

Walicer, J., and AlleN, J.,
dissenting: There was a clear error in this instruction of the court: “If you shall find from the greater weight of the evidence that after the plaintiff was injured he asked Dr. Aldrich, the president and general manager of defendant, if he had not better send for another physician, and if you find that Dr. Aldrich then advised the plaintiff that it was unnecessary, that he and Dr. Smith could set the arm as well as any one; that it was only a simple fracture; then the court charges you he had a right to rely upon such assurance, and you will answer the fourth issue Ño.’ ”
The fourth issue and answer were: “Did the plaintiff assume the risk of the treatment by Dr. Smith for the injury complained of in this action? Answer: No.’ ”
The question under this issue was one of fact, whether plaintiff actually relied upon the assurance of Dr. C. S. Aldrich, or whether he did not do so, and thereby assumed the risk by acting upon his judgment and responsibility, whereas the court charged that if the doctor gave him the ¡assurance, he had the “right to rely on it,” and they will answer the fourth issue “No.” It is manifest that the question was not whether he had the right to rely on the assurance of Dr. Aldrich, but whether he did rely upon it, and the importance of this distinction will more clearly appear, if it is not now sufficiently so, when we consider the evidence, for the plaintiff testified that while Dr. Aldrich gave him this assurance, he did not believe it. We are not contending there was no evidence that he relied upon it, but that the fact involved, whether he did or not rely upon it, was not submitted to the jury, and the finding of the jury in response to that issue was made to turn solely on his right to do so. Nor is the case as reported in 176 N. C., 645 (op. by Brown, J.), any authority to sustain such an instruction. There the finding was made to turn on the question whether he had actually relied upon the assurance and not solely, as here, upon his right to rely upon it. Besides, the Court was there referring only to the evidence and not to the charge, -as plainly appears from the passage which the Court takes from that opinion, as follows: “There is evidence that plaintiff, some time before he *595 was injured, complained to tbe president of tbe company of Dr. Smith’s incompetence, and when be was injured tbe president assured him that be and Smith were fully competent to perform tbe operation, and that defendant, in submitting to tbe operation, relied upon such assurance, as be bad a right to do.” So we see that this point was not ruled upon in the former appeal. We therefore dissent from tbe judgment of tbe Court, as we are of tbe opinion there was error in tbe respect pointed ■out, which entitles defendant to a new trial.
The verdict was a directed one, as it was made to depend entirely upon tbe right to rely upon tbe assurance, which was held, as matter of law, to exist, and thereupon tbe jury were instructed to answer tbe issue "Ho.” They could do nothing else under this charge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9811617. Public record. Not legal advice.