We have set .out in considerable detail the evidence with respect to the happening of the injury, mainly for the purpose of showing the merits of plaintiff’s
•True, the burden of proof on a settlement of this kind is upon the defendant; but when a proper release, duly executed and signed, has been shown by the defendant, such settlement has not only been presumptively shown, but can only be overcome by evidence in the case on the part of the plaintiff which, as above stated, is clear, satisfactory, and convincing beyond reasonable controversy.
It appears that the plaintiff sustained substantial injuries, for which the jury assessed damages in the sum of $1,500. The amount paid in the settlement, therefore, appears not to be reasonably commensurate with the actual damages. In determining what would be a reasonable settlement under the circumstances we must consider not only the actual damages sustained, but, among other things, the reasonable probability of plaintiff’s ultimate success based upon the merits of the case. A careful analysis of the evidence clearly discloses that plaintiff’s case has no support in the evidence, excepting only by her unsupported and highly improbable version. All the surrounding facts and circumstances and the physical facts in the case, which to a large measure are controlling in every personal-injury case, refute her statements. On the morning in question, according to her own
From what has been said, we therefore hold that when the plaintiff presented herself at the office of the claim agent of the company at the time when the alleged settlement was made, she had, to say the least, an extremely doubtful cause as far as legal liability of the company is concerned. Plaintiff, being an intelligent young lady twenty-four years of age,
In Bessey v. M., St. P. & S. S. M. R. Co. 154 Wis. 334, 141 N. W. 244, where a settlement was made with the plaintiff for rather serious personal injuries for a trifling sum, the plaintiff charged that it was represented to him that the amount paid was for wages and that the writing which he signed was merely a receipt for such wages, and where it also appeared that at the time of the execution of the release the plaintiff, by reason of-pain and suffering, was unable to clearly comprehend and understand the transaction, this court reversed the judgment of the circuit court, and in its opinion used the following language:
“These evidentiary facts and many of the accompanying circumstances, together with the plaintiff’s conduct in the matter, make it clear that he was not misled nor deceived into signing the -release under the belief that it was a mere receipt for two months’ wages. The evidence falls far short of the legal requirements to impeach the formal written release. In probative force it is not of such weight and credibility as to constitute clear and convincing proof beyond reasonable controversy of the alleged fraud in pro*260 curing plaintiff’s signature to the release, and therefore as a matter of law does not sustain the finding of the jury on this question.”
In the case of Kenese v. Cudahy Bros. Co. 167 Wis. 378, 167 N. W. 750, this court refused to sustain the findings of the jury that the release was obtained by fraud, and in its opinion says:
“There is no dispute but that the plaintiff signed the release, but he avers that he signed it under the belief that he was signing a receipt for $50 which defendant offered to pay him as wages. Plaintiff is unable to understarid, speak, read, or write English.; he denies that he and Daly, defendant’s manager, had any negotiation of settlement before the paper was signed; he states that the contents of the paper were not translated to him by Dr. Junge, his attending physician at the hospital where the "paper was signed; that it was not explained to him; that he did not ask the doctor to translate it; that he did not know it was a release, and that he did not know that he had a claim against the defendant.”
In this case the court further said:
“The record fails to show the quantum and character of evidence which is required in order to find that the fraud charged has been established by clear, satisfactory, and convincing evidence.”
The case at bar is infinitely stronger, from the standpoint of the defendant, than any of the cases above referred to, and in fact it might truthfully be said, stronger than any of the cases in our Reports. Plaintiff testified that she could have read the release if she had desired; in fact, when the duplicate was handed to her for signature, no effort whatever was made by the claim agent to obstruct her view. She received the check, which she was fully able to understand and had ample opportunity to read, and took it, unaccompanied, from the claim agent’s office to the office of the railway company and had it cashed. This check on its face contained a provision which informed her that it was in full payment not only of her damage to and loss of per
Prior to the time plaintiff called on defendant’s claim agent she had a conference with her brother, who was a railroad employee, and he advised her that if the offer of settlement was not satisfactory she could refuse to accept the same and then sue for damages.
The entire case is so shrouded in improbabilities, so contrary to human reason, and so opposed to the physical facts, that the circuit court should have reversed the judgment of the civil court and dismissed the complaint.
Under the circumstances, with the view that we have thus expressed, it would be merely an idle ceremony to affirm the order of the court below. In accordance with our vi,ew, therefore, we direct that the' judgment of the civil court should be reversed, and the cause remanded with instructions to the circuit court to dismiss the plaintiff’s complaint, with costs.
By the Court. — It is so ordered.