71 Wis. 391 | Wis. | 1888
Unless the plaintiff is barred from a recovery in this action by the release given in evidence, the judgment appealed from must be affirmed. The plaintiff was a mail-agent, and was injured while traveling on the defendant's road, by a collision' which occurred solely through the negligence of an engineer in charge of and running an engine on its road. It is not claimed that the plaintiff was at fault, or contributed in any way through want of care to produce the injuries he sustained. When injured he was in the discharge of his duties as mail-route agent, and doubtless held the relation of a passenger to the company at the time of the collision. Besides personal injuries, the plaintiff lost some money and property in consequence of the car taking fire on*which he was riding. The accident happened in the forenoon on the 26th of October, 1886, soon after the regular passenger train going east had
The testimony is conflicting as to w’hat conversation was had betwmen the plaintiff and Mr. Richards, the claim-agent, prior to the signing of this release, and as to the circumstances attending its execution. The jury found, in answer to questions submitted, that the money was not paid upon the understanding, by the claim-agent, that it was in full of all claims growing out of the accident; that the plaintiff signed the release without knowing it contained a clause releasing claims for personal injury, and that he would not have signed it had he known it contained
The learned circuit judge declined to submit a question whether the defendant’s agent made any false representations to the plaintiff as to the contents of the release when it was signed, because he thought there was no evidence that any false Statements or representations in express terms were made. It is true that there is no evidence that any actual fraud was practiced by the agent to procure the plaintiff’s signature to the paper; still it is difficult to conceive how the clause releasing all claims for personal injuries was inserted therein without the knowledge of the agent, who himself drew up the instrument, as we understand the testimony. But, in view of the finding of the jury, vve must assume that the agent inserted that clause by mistake; for it is found that neither the plaintiff nor the agent understood or knew that the instrument contained a clause releasing the claim for personal injuries. The conclusion is inevitable that the clause releásing the claim for personal injuries was inserted in the release either through pure mistake, or by error on the part of the agent of the defendant in reducing it to writing, who did not intend any actual wrong or bad faith. Upon either hypothesis, the question is, Does the release bind the plaintiff, or may he show that he did not understand it and would not have signed it had he known that it contained that clause?
The learned counsel for the defendant insists that the release is binding unless it appears that it was procured by fraud; consequently that the evidence admitted against objection, that the plaintiff did not read or understand the
As to the case before us, the decided weight of testimony supports the conclusion that the matter of personal injuries was not talked about or considered when the release was executed. The explanation may be (probably is) that such injuries were not deemed seiúous. The agent himself says, in substance, that in their negotiations the plaintiff seemed to place the most stress upon his property lost and the expense of his sickness, and did not dwell upon his personal injuries. If his real pecuniary loss was made good, and his doctors’ bills paid, he seemed satisfied, “ and would call it even.” Dr. Boyd did not remember that anything was said in the conversation about personal injuries. The plaintiff remarked that $50 was paying for the personal property, and that the government would allow him for his time lost,
The further question then arises, "Was the ignorance of the plaintiff of the clause contained in the instrument releasing all claim of personal injury, the result of such negligence on his part as precludes him from avoiding it? As to that point we are constrained to say, without imputing to the agent who obtained the release any conscious bad faith in the transaction, that he obtained it at such a time and under such circumstances as show that he acquired an undue advantage, akin in law to a species of fraud. Therefore we are satisfied from all the evidence that it would be against good conscience to allow the defendant to have the benefit of the release thus acquired and hold the plaintiff to its terms. The parties were not standing upon an equal footing in the negotiation. The plaintiff was sick in bed; suffering from an injury to his face and head, which proved to be serious. True, he was conscious and rational, and his recollection of events was clear, but the interview was quite brief, and it is a fair inference that the plaintiff was in no condition to read and fully comprehend the release. lie says, in regard to his condition, that the release was not read to him, but handed to him to read; that he tried to read it and could not. He adds: “ I had tried three times to get up that morning. Each time I raised up I was seized
The trial court in effect held that the burden of impeaching the release was upon the plaintiff, who must show with reasonable certainty that it was not intended to include the claim for personal injury; and the jury were told that if the plaintiff signed it after the subject of his injuries was talked over, understanding that it was a release of that claim, whether he then knew the extent of his injuries or not, — Tf he executed the instrument understandiugly,— he
By the Gourt.— The judgment of the circuit court is affirmed.