127 Va. 634 | Va. | 1920
delivered the opinion of the court.
The Clinchfield Coal Corporation, hereinafter called the defendant, complains of a judgment in favor of Carl Couch for $400, in an action for personal injury.
Upon the merits of the case it appears that excluding cértain evidence which is complained of as irrelevant and inadmissible, there is sufficient evidence to justify the recovery upon the ground that the plaintiff was exposed to unnecessary peril by his employer, without sufficient warning. We do not feel, therefore, that in this case it is necessary to discuss several of the alleged errors, as they present no novel questions, though some of them are close and difficult, because, as stated, the evidence is sufficient to justify the recovery. The assignment, however, which does require serious consideration arises because the plaintiff was an infant at the time of his injury, that he compromised his claim against the company, and received in settlement thereof the sum of $139.14 in consideration of his release of the company.
The accident occurred on the night of April 16, 1915, the release was executed May 21, 1915, he attained his majority March 3,1916, and instituted this action March 1,1917, just two days before it would have been barred by the Virginia statute. Code 1919, sections 5818 and 5823.
One of the instructions reads thus: “If the jury believe from the evidence that when Carl Couch signed the release dated May 21, 1915, introduced in evidence, he was under
In Baker v. Lovett, 6 Mass. 78, 4 Am. Dec. 88, it is said, referring to the general doctrine on the subject: “The law, however, will not admit these principles to be made an engine of fraud and injustice, and in the case at bar, if the jury on the trial are convinced that the satisfaction received * * * was a compensation for the injury, they will assess for the plaintiff but nominal damages. But if the compensation should be found inadequate, the jury will give such further sum as, with the money received * * *
The same rule is applied in Bonner & Eddy v. Bryant, 79 Tex. 540, 15 S. W. 491, 23 Am. St. Rep. 361. There the defendants had furnished the plaintiff with an artificial leg and received a release of damages, and the court held that if the plaintiff recovered the defendant should be allowed the value of the artificial leg so furnished.
In Worthy v. Jonesville Oil Mill, 77 S. C. 69, 57 S. E. 634, 11 L. R. A. (N. S.) 690, 12 Am. & Eng. Ann. Cas. 688, Woods, J., says, referring to the same subject: “The law, however, will not allow an infant to perpetrate a fraud; and where he executes a release for value, the jury should inquire to what extent he has been really benefited by the consideration paid, and take that into account in finding a verdict in his favor for amages.” St. Louis, etc., R. Co. v. Higgins, 44 Ark. 293.
In these cases, also, the plaintiffs in actions for- personal injury who had executed releases which they claimed were either void or voidable, though adults, were allowed to sue without being required to tender the amount which had been received by way of settlement:
In O’Brien v. Chicago, Milwaukee & St. Paul Ry. Co., 89 Ia. 644, 57 N. W. 425, it is held that the settlement with the plaintiff having been procured by fraud, and he being-entitled to receive the benefits thereunder, either by virtue of the settlement dr of the defendant’s original liability, a tender of the amount received under the settlement was not necessary before the action could be maintained.
So, in Chicago, Rock Island & Pac. R. Co. v. Doyle, 18 Kan. 58, it is held that where the plaintiff executed a paper purporting to be- a release, discharging his right of action against the railroad company for injuries complained of,
Our conclusion, therefore, is to credit the judgment with $139.14, the amount received by the plaintiff by way of compromise, and as thus amended to affirm the judgment of, the trial court.
Amended and affirmed.