15 Ga. App. 831 | Ga. Ct. App. | 1915
Mrs. Louise Adeeb brought her action for damages against the Atlantic Coast Line Railroad Company and the Georgia Southern & Florida Railway Company as joint tort-feasors, alleging that because of the concurrent negligence of both defendants, she had suffered various physical injuries, resulting from a collision at a grade crossing in Valdosta, Georgia, on January 15, 1912, between a train of the Atlantic Coast Line Railroad Company, on which she was a passenger, and a train of the Georgia Southern & Florida Railway Company. Each defendant filed, in addition to a plea to the merits, a special plea setting up that prior to the bringing of the suit the plaintiff had effected with the Atlantic Coast Line Railroad Company a full and complete settlement for the alleged injuries, for a valuable consideration paid by that company and accepted by her as an accord and satisfaction for all such injuries. The issue raised by the special pleas was submitted to a special jury and was determined in favor of the plaintiff. The trial then proceeded, and, at the close of the evidence for the plaintiff, the court granted a nonsuit as to the Georgia Southern & Florida Railway Company, and upon the completion of the entire testimony the jury returned a verdict for $600 against the Atlantic Coast Line Railroad Company. Both the plaintiff and the Atlantic Coast Line Railroad Company filed exceptions pendente lite to the order granting a nonsuit as to the Georgia Southern & Florida Railway Company. The Atlantic Coast'Line Railroad Company made a motion for a new trial, on various grounds, and the Georgia Southern & Florida Railway Company filed a motion for a new trial of the issue raised by its special plea of accord and satisfac
The defendant introduced in evidence a written release, dated January 15, 1913, signed by the plaintiff and witnessed by F. A. Bates and O. T. Hill, which recited that the plaintiff had a claim against the Atlantic Coast Line Bailroad Company for injury to her back and side, and for all injuries to her person of every kind and character, occurring at Yaldosta, Georgia, on the 15th day of January, 1913, under circumstances which she claimed rendered the Atlantic Coast Line Bailroad Company liable (which liability was denied by the railroad company), and, whereas both parties desired to effect a compromise, the plaintiff acknowledged the receipt by her from the Atlantic Coast Line Bailroad Company of the sum of $10, and, in consideration of the payment of this amount to her, she thereby acquitted, discharged, and released the Atlantic Coast Line Bailroad Company, its agents and employees from any and all liability on account of such injuries or for any results therefrom, direct or indirect. See Donaldson v. Carmichael, 102 Ga. 40 (29 S. E. 135). F. A. Bates, the conductor in charge of the train of the Atlantic Coast Line Bailroad Company, on which Mrs. Adeeb was riding when injured, and O. T. Hill, the special claim agent of that company, both testified that shortly after the collision they assisted the plaintiff to leave the passenger^-coach, and that at the time she was excited and was crying, and said she was suffering pain; that she could speak English, but they " could tell she was a foreigner;” that they conducted her to a near-by hack and placed her therein, and Hill got into the hack with her; that after she was seated in the hack and after the matter had been fully explained to her, and Hill had read over a printed form of release (except that no mention was made of the $10 consideration, which Bates produced), she signed her name thereto with full knowledge that
The plaintiff testified, in broken English, that she was 3.0 years old, and came from Syria to America 8 years before; that she learned to speak the English language one or two years after she ■arrived here, but could not read English, though she could “write French, and English is the same write, . . same sort of letters, different ways, that is all.” The plaintiff said that on the morning the train was wrecked, “the conductor first see me inside the car. I be in car hollering. The conductor, he told me, ‘You hurt;’ he said me hurt, and ask me what the matter with me. He said, ‘Give me your name, please,’ and I said ‘Louise Adeeb.’ He said, ‘How do you spell your last name?’ I spell it for him. He told me to sign it down here, and ‘I am going to help you get hack.’ He make me sit down, make me get me hack; he go after hack; that is what he say; he came back fifteen, twenty, or thirty minutes.” Without attempting further to use the exact language of the witness, but giving her testimony in substance and as nearly as possible, she said further that the conductor, or Hill, one of them,
The plaintiff in error insists that the evidence discloses that $10 was paid to the plaintiff and received by her in consideration of the execution of the release, and that, since she failed to return this amount and to rescind the contract of release as soon as she discovered that a fraud had been perpetrated upon her, and still retained the money, she could not now attack the agreement. The case of Pennsylvania Casualty Co. v. Thompson, 130 Ga. 766 (61 S. E. 829), is relied upon to sustain this view. In that case the Supreme Court said: “In no event could the plaintiff maintain an attack on the release, in the absence of proper allegations in his petition and an offer on his part, prior to the commencement of the suit, to rescind, and a tender back to the defendant of the amount which it had paid in order to obtain such release.55 In Jossey v. Georgia Southern Ry. Co., 109 Ga. 439 (34 S. E. 664), the Supreme Court said: “One who signs a contract which recites that in consideration of a stated sum paid him by a railroad company he releases it from all liability for a personal injur]'', which he contends was caused by its negligence, will be estopped from claiming
There are many other cases along this line, but, on an examination of the case above referred to, as well as others, in which it is held that before a party can rescind or attack a contract or release on the ground of fraud or for any other reason, he must return or offer to return money or property which he has received, it will be seen that the money or property was the fruit of a contract or release which he either actually made and agreed to, or which, because of his acts and conduct in connection therewith, he was presumed by law to have acquiesced in, accepted, or agreed to. There must either have been an actual meeting of the minds of the parties
Applying the law as we understand it to the facts of this case, there seems to be no reason in law or good conscience why the suit of Mrs. Adeeb should be abated because she did not, before bringing her action, return the $10, which, áeeording to her testimony, was thrust upon her by an employee of the defendant companjr, and which she says she never in fact received or agreed to accept, when it further appears from her testimony that the alleged contract, which the defendant insists she made, was never any contract at
Hnder this evidence it does not appear, in the first place, that there was an intention on the part of Mrs. Adeeb to make a contract of any kind with the defendant, or that, at the time she signed the blank form of release, she knew that the defendant intended to bind her thereby in anyway, or even that the payment of $10 to her, if it be conceded that the $10 was actually received by her or was actually retained after she discovered that it had been delivered to her by the defendant, was for and in consideration of her act in signing her name, or was intended to bind her in any way whatever. It appears that she was a foreigner, ignorant of English, probably but little acquainted with business affairs or methods, and possibly obsessed with the idea, said to still predominate in certain remote quarters of the globe, that in this land of the free and home of the brave, currency may be plucked from the trees and gold picked Up on the streets, and even after eight years absence from her Syrian birthplace, she may have thought, when the conductor insisted so earnestly upon her acceptance of the $10 bill and even east it in her lap, as if it were mere negligible dross, that this
It is true the evidence is in sharp conflict on this point, but the jury had the right to believe the evidence of the plaintiff in preference to that of the witnesses for the defendants, and they may have judged, from the slight knowledge of English which she betrayed on the witness-stand and from her statement as a whole, that in point of fact she did not understand what she was requested to do when she affixed her signature to the release, and that she never at any time understood for what reason, how, or on account of what consideration, the $10 was paid to her, and that she may have believed and understood that this amount, if she ever felt assured it came from the railroad company, was intended merely as a gift, binding her to nothing whatsoever. The physician who testified that he asked the plaintiff why she had signed the paper, and why she had accepted $10 from the railroad company, said he did not explain to her the nature of the paper he heard she had signed, and he did not testify that she understood from his questions the nature of the paper or why the $10 was paid to her. It appears entirely possible, and in fact probable, that the plaintiff never realized why the defendants claimed the $10 had been paid to her, or why it had been thrust upon her, until after her suit was filed and the special pleas setting up the release and the pajonent of this amount were interposed by them. Be this as it may, there is nothing to show, that she understood that the $10 was “to be retained upon a consideration stated” (Hamilton v. Stewart, supra), or that this amount had been paid to her “in order to obtain such a release.” Pennsylvania Casually Co. v. Thompson, supra.
We think the jury had ample testimony upon which to base their verdict in favor of the plaintiff on this issue, if they elected to accept the testimony of the plaintiff; and it appears that the circumstances surrounding the signing of the alleged release were sufficient to authorize the conclusion reached by them that the plaintiff, in signing the paper and in retaining the $10 placed in her hand-bag, did not at any time understand what she was thereby
Judgment affirmed.