99 Neb. 730 | Neb. | 1916
This is an appeal from the district court for Douglas county in an action wherein the plaintiff recovered a judgment for $2,000 for personal injuries sustained while in defendant’s employ. "While in the discharge of his duties as an arc light inspector, owing to the defective construction of defendant’s lines and its failure to keep its wires properly insulated, plaintiff received an electric shock which threw him from the pole where he was working to the pavement helow. He sustained a fracture at the base of the skull and was otherwise injured.
The answer contained a general denial; alleged contributory negligence on the part of plaintiff; that he was familiar with the dangers incident to his employment, and had assumed the risks incident thereto; and further alleged that at a time subsequent to the injuries the plaintiff had made a full and complete settlement with the defendant covering all damages he had sustained, and that plaintiff had executed the following release in writing:
“Oct. 14, 1912.
“Received from Omaha Electric Eight & Power C;o. the sum of ninety seven dollars ($97.50) which I (being of lawful age) acknowledge to he in full accord, satisfaction and. compromise of a disputed claim growing out of a bodily injury sustained by me on or about August 27, 1912, for which bodily injury I have claimed the said Omaha Electric Light & Power Co. to be legally liable; and in consideration of said sum so paid I hereby remise, release and forever discharge the said Omaha Electric Light & Power Co., its successors, administrators, and assigns from any and all actions, causes of actions, claims and demands, for, upon, or by reason of, any damage, loss, injury or suffering which heretofore has been, or which hereafter may be, sustained by me in consequence of such accident and injury.
“Witness my hand and seal the day and date first above written. A. L. Perry.
- “Witness: Fred Dickinson.”
At the close of plaintiff’s case defendant moved for a directed verdict, based solely on the ground that plaintiff could not recover owing to the execution of this release. At the close of defendant’s case the same motion was renewed, and, although five assignments of error are made in the brief, appellant’s main contention • is based upon the proposition that the settlement and release were and are binding on plaintiff, and that he is not entitled to recover in the face of this release.
The first proposition of law advanced by appellant is: “A party who, having the capacity and opportunity to read a release of claims for damages for personal injuries signed by himself, and not being prevented by fraud practiced upon him from so reading it, failed to do so, and relied upon what the other party said about it, is estopped by his own negligence from claiming that the release is not legal and binding upon him according to its terms.” It has been so
Following the execution of the release, plaintiff resumed work for the company arid remained in its employ for several months. He left Omaha in March 1913, but returned in December following, and again made application to defendant for work. The foreman to whom he applied promised him employment, but within a short time thereafter notified him that the company did not desire to secure
In Hauber v. Leibold, 76 Neb. 706, it is held: “In order to make a valid contract the minds of the parties must meet; and if one mind is so weak, unsound or diseased that the party is incapable of understanding the nature and quality of the act to be performed, or its consequences, he is incompetent to make a valid contract, whether such state of his mind be the result of sickness, accident or voluntary intoxication.”
If his mind was in such condition that he could not make a valid contract, it matters not, so far as the release is concerned, whether that condition of mind was brought about by reason of the shock from the fracture of his skull or from the disease with which he is shown to have been afflicted.
Where the amount received in settlement is grossly inadequate to the injuries suffered, that fact may be con
Defendant states in its main brief that in this appeal it “has devoted its attention solely to the defense of a settlement and release having been made.” However, we find that complaint is made of instructions. The court instructed the jury that the release was binding on the plaintiff, unless he had established by a preponderance of the testimony that it was obtained through fraud or deception practiced upon him, or at the time of its execution plaintiff’s mental condition was such that he could not understand its meaning or purpose. We find no error in this instruction.
The judgment is
Affirmed.
Sedgwick, J., not sitting.