Pinney, J.
1. The evidence clearly shows that the injury received by the assured justly and properly entitled him to receive $3,000, according to the terms of the policy, for the entire loss of both feet. As early as the 20th of January after the injury the company had full notice of the facts and circumstances of the case, and were informed by the letter of “ Donald Ross, R.,” dated the 16th of that month, that the wound the assured had received had caused *521permanent paralysis of his legs, and that the doctors said he would ultimately die; that “ to all practical purposes he has lost the entire limbs;” but the company, through its secretary, denied liability for loss on that ground, because his legs, which had become useless appendages, had not been amputated. This information was conveyed both by telegram and letter to Donald Ross, manager, and within a few days thereafter to the assured, or at least to his brother. It is not necessary to comment on the absurdity of this position of the company, and it is impossible to contend, as we think, that the company did not deny liability for the loss sued for, so as to'dispense with the necessity of formal proofs of loss. Besides, 3L J. L. Ross, who had charge of the case, must be regarded, under the circumstances of the case, as having acted throughout with the knowledge and authority of the defendant; had prepared proofs and procured them to be signed and perfected, showing how the assured had sustained his injury, not, it is true, to enable him to get the $3,000, to which it was evident he would be entitled at the expiration of ninety days, but as a means of defeating his claim to that sum by putting him off with the small sum of $450 instead, as disclosed in the letter of the 16th of January to the company. The conduct of the company thereafter in relation to this policy seems to have been inspired by the improper suggestions contained in this letter, There is nothing in the testimony to show that the assured, or any one acting for him, ever offered or proposed any compromise of the claim in suit. On the contrary, the testimony is all the other way; and, if the facts were otherwise, it-is a significant circumstance that the evidence of K. J. L. Ross, still residing at Spokane Falls, was not procured to vindicate the transaction in question, now insisted on by the defendant as a bar to the plaintiff’s recovery, and to show by way of rebuttal that there was a fair and deliberate agreement by *522which the assured, in. consideration of $450, elected and chose to forego his right to $3,000, which, to a inoral certainty, would become absolute within about three weeks thereafter. K. J. L. Boss drew up and obtained the signature of the assured to the proof of claim for weekly indemnity for thirty weeks at $15 per week. Besides, after the time for furnishing proofs had expired, and in July, 1889, the assured procured and sent to the company, at its request, the statement of the family physician, Dr. Cutler, showing the condition of the assured, and that there had been no material change in it up to July 24, 1889. Before this, the assured, at the request of agents of the company, had submitted to several examinations by its physicians. The objection that the plaintiff cannot recover for failure to furnish the defendant with proper proofs cannot be maintained. The circuit judge properly directed the jury to find that the company had denied liability for the loss in question.
2. The defendant seeks to avoid the effect of the conversations and acts of the assumes brother, Robert, and of K. J: L. Ross, in respect to the policy and claim of the assured. It is said, first, that there is no evidence to show that Robert Shecmon had any authority or right to act or speak for his brother; and, second, that the letters, acts, and declarations of K. J. L. Ross were not admissible in evidence, for want of proof of his authority to act for the company. We cannot regard either position as possessing any merit. An authority on the part of Robert Sheanon to act as he did in the premises on behalf of his brother need not be express, but might be implied from the uncontra-dicted evidence as to the circumstances, and showing the deplorable situation of the assured. He had been stricken down in a strange and distant country, with the prospects of present death or a brief life of suffering, from which death itself would be a relief; and was utterly helpless, *523with no relative or friend near him but his brother, caring for and attending on him. The agency of Robert Sheanon might well be implied from all the facts and circumstances given in evidence, and the conduct of the parties so far as it appears in evidence. In many cases the existence of an agency may be implied or presumed from the words or conduct of the parties, and this, too, although the creation of an agency was not within their immediate contemplation ; but this agency is to be limited in its scope and operation to the reasonable and necessary requirements of the case which called it into being. In connection with the unfortunate condition of the assured, it is to be borne in mind that his brother, Robert, designed taking him presently to his home in Wisconsin, and.it was considered important to close up the business in relation to the policy before leaving Spokane Falls. Under any other rule, if paralysis of the vocal organs had ensued from his injury, it would have been absolutely impossible for him to have made the least provision for his comfort or safety, however necessary, by or through the authority of a friend or relative attending on him, or to bind himself in relation to business matters of great urgency.
Donald Ross testified that at the time in question he was the general agent of the defendant, and he was spoken of as such, and as its manager. The defendant, it appears, addressed him by letter as “ manager.” He had an office as such at Spokane Falls, with one or more clerks; and the agent at Burke directed the assured and his brother to call, on him with reference to the claim under the policy. "What followed has been stated. Suffice it to say that the company recognized the communications signed by II. J. L. Ross by adding “ E.” to the name of Donald Ross, and replied thereto to “ Donald Ross, Manager.” K. J. L. Ross was in the office of the manager of the company, acting in relation to the case for it, and got possession of the com*524munications from the company properly, as we must assume, and informed the assured or his brother of the letter denying liability for the loss sued for. It was evident that it was the intention of the company that this denial should be communicated, as it seems it was, to the assured; and the several steps by which it was brought about were competent evidence. Donald Ross does not (deny the authority of K. J. L. Ross, but rather affirms it. He testified that “K. J. L. Ross, who was in my office, had communication with the assured or his brother, Robert, with reference to loss under the policy of insurance in the suit. Ho-is now in Spokane. K. J. L. Ross had charge of the matter.” The objections made to the testimony of Robert Sheanon and the telegrams and letters offered, are clearly untenable. . The uncontradicted evidence places this matter fairly beyond dispute, and shows that the denial of liability was communicated to the assured, or at least to Robert Sheanon, who was acting for him, and came in answer to the telegram he had got Ross to send, to ascertain whether the policy covered a case of total paralysis of the legs. Robert testified that he (Ross) read off the letter that the company'would not pay the man Sheanon unless his limbs were taken off within ninety days or the accident caused his death.
3. We cannot say that the admission .of evidence as to the condition of the assured after the expiration of ninety days from the date of the injury was error prejudicial to the defendant, in view of the fact that the only questions left to the jury related to the signing of the proof of loss and the receipt for the $450 in the following July. This evidence was material to the question whether the assured, or the plaintiff, as his executor, should be held barred by reason of the provisions of these papers, or whether he signed them through excusable mistake or negligence.
4. The statement of Dr. Cutler was properly received *525in evidence, to show that the assured was endeavoring to comply with the reasonable request of the company to furnish it evidence of his condition immediately after the usual period for furnishing proofs had expired, and tended to show that the provision of the policy on this subject, in view of the surgical examinations of the assured, and other circumstances, was waived, or would not be insisted on, even if it had not been otherwise dispensed with.
5. The motion of the defendant for a nonsuit was properly denied. There was evidence before the jury when the plaintiff rested sufficient to sustain a verdict in his favor. The evidence is uncontradicted that the total paralysis of the lower limbs and feet of the assured continued until his death in 1890, and that after the injury he never had any use of them, and was not able to stand up again. What the possibilities of the case may have been, as viewed from the time when he received his injury, it is not material to consider. They had been resolved into distressing certainty within the period of ninety days from the date of his injury.
6. The letter which was written by Jarvis at the request of Robert Sheanon, who had implied authority to act for the assured in that behalf, over his name, and which was sent with the release signed by him, was a part of the transaction in question, and, in view of the condition of the assured, who could only make his signature while lying on his back in bed, was competent evidence to show that he did not waive his claim for the $3,000 for loss of both feet, and did not understand that he was electing or had elected to take the comparatively insignificant sum of $450 in lieu of it, when his right to the greater sum had'already become fixed. It conveyed notice to the defendant accordingly, and was proper and, as we think, important evidence, under the circumstances, upon the question whether any effect ought to be given to the release and stipulation in the *526proof of claim. The letter of September 28, 1889, signed- “ Donald Ross, Manager, R.,” was produced by the executor of the assured, and the evidence was sufficient to show that it was written by the manager at Spokane Falls, or by his authority, and so was competent. It is significant that it does not insist on the release as a bar, but discourages the idea of. writing to'the company for the full sum, on the ground that they had passed on the claim, and sent the $150.
7. The remaining questions relate to the effect to be given to the stipulation in the claim of loss, and to the “ release,” as it is called, though it is not under seal, and were raised by exceptions to the refusal of the court to direct the jury to find for the defendant, and to instructions given and refused, and to the refusal of the court to grant a new trial. It must strike any reasonable person that the assured, and his brother as well, must have been laboring under some serious mistake or misapprehension, and did not understand or agree that the $450 should be taken in full discharge of the $3,000, to which the assured was beyond reasonable doubt entitled when the so-called “release” was signed. It is reasonably clear that this matter was being managed with great care and caution-on the part of the company, to avoid payment of the entire amount of the policy. The assured and his brother seem to have had the utmost confidence in the agent of the company, which his superior knowledge and experience was calculated to inspire. He took it upon himself to manage the matter of the proof of claim, and prepared it of his own volition, and sent the release, in which much was said about loss of time, and very little that would relate to the claim for loss of feet. The assured was in a deplorable physical condition, and in the mental perturbation which would naturally attend a great calamity soon to prove fatal. Nothing had occurred to warn him of any sinister plan to- get him to *527take $450 for a really valid claim of $3,000. His mind Rad never been directed to any such proposition. These considerations, together with the facts in evidence already referred to, presented a case for the consideration of the jury to find whether, within the rule often laid down and acted upon by this and other courts, the papers relied on as a bar were not signed under or through excusable negligence or mistake, and so were not operative' to bar the claim in suit.
In Butler v. Regents of University, 32 Wis. 132, 133, it was held that if a party signed an alleged discharge or acquittance without knowing its contents, and without intending to sign such an instrument, he is not bound by it; the evidence in that case tending to prove that he signed the instrument under such circumstances. In Schultz v. C. & N. W. R. Co. 44 Wis. 638, 645, a release or compromise of a claim for personal injury against a railroad company was held inoperative on the ground that it was signed' by the party without knowing its contents or intending to sign such an instrument, and that he was therefore not bound by it; he having testified that he never settled with the defendant. In Bussian v. M., L. S. & W. R. Co. 56 Wis. 326, 333, which was a similar case, it was held that it might be shown that a release pleaded in bar was obtained by fraud, misrepresentation, or undue influence. In the case of Lusted v. C. & N. W. R. Co. 71 Wis. 391, a similar question -was presented, where the release was not read to the plaintiff, who was sick in bed, and, when handed to him, he tried to read it but could not by reason of dizziness caused by injuries to his face and head; and it was held that a release of damages for personal injuries was not binding, and the plaintiff’s ignorance of its contents was not the result of such negligence as would preclude him from avoiding the release. In that ‘case nearly all the authorities relied on by the appellant in this were brought to the attention of *528the court. The cases of Fuller v. Madison M. Ins. Co. 36 Wis. 599, and Sanger v. Dun, 47 Wis. 615, were distinguished, because the ignorance of the contents of the papers signed was justlj'- attributable to gross negligence on the part of the persons signing them.
The authorities in this state fully sustain the conclusion that, if the instrument was signed through the excusable mistake or negligence of the party, he is not bound by it-, although the burden of proof is on him to rebut the presumption of gross negligence. If .grossly negligent, manifestly he would be bound by it; but the presumption is not a conclusive one. For this reason the motion t'o direct a verdict for the defendant was properly overruled. There was sufficient evidence to go to the jury on the question suggested, and the instruction asked for by defendant, which limited the right of a party to avoid an instrument signed by him to the case where false statements or representations are made as to its contents, was properly refused. The jury were instructed, in substance, that if the assured did waive and abandon his claim to $3,000, and elect to take the claim of weekly indemnity, with the full understanding of what he was doing -at the time, he would be bound by such an election, and likewise the plaintiff, as his executor. The question was also submitted to the jury whether, when he signed the proof or claim, he understood and had full knowledge' of the contents of it; that, if he fully understood the contents of the statement or proof, and fully acceded to the terms which it contained, then that would be binding upon him; and if, on the other hand, he was in any way deceived or misled by ignorance of what the transaction amounted to, and the jury should so find from the testimony, then he would not be bound. And so, also, as to the receipt or release containing the statement: “ Said company is hereby relieved from any further liability growing out of said injury, whether the result be fatal or other*529wise,”— that, if the jury should find from the evidence that the assured understood the receipt was in full satisfaction of his claim, then it would be binding upon him, and the plaintiff could not recover; but if he was laboring under some mistake, or did not understand what the contents of it were, then it is not of such binding effect but what it can be explained, and that it would only be held to bind to the extent to which it was understood at the time by the parties. That if, from the testimony, at the time he received the $450, he knew that it was payment in full under the weekly indemnity clause, then the jury should answer that question in the affirmative; on the contrary, if he did not know that it was payment in full under that clause of the policy, then their answer to it would be “ No.” That it was for them to detertiiine from the testimony introduced in the case. There were exceptions to these several instructions, but we think they are in accordance with the principles laid down by this court in similar cases, and hold that the exceptions are not well taken. The issue in respect to the signing of the papers in question was fairly left to the jury, to be found by them upon the evidence; and, in view of all the facts and circumstances of the case, we are of the opinion that there is sufficient evidence to sustain the finding.
The company seemed desirous and overwilling to pay the lesser sum for a claim that' had no existence, in order to avoid paying the larger sum for the claim that did exist, and of which it had full knowledge. It is claimed that the assured would not be entitled to both. The jury have found that he did not elect to take the lesser sum in lieu of the greater. It is admitted in the answer that the $450 was paid on account of the policy. The court, however, 'allowed the sum of $450 to be credited as so much paid on account of the loss of the feet of the assured, so that the defendant has no right to complain that this sum was not *530tendered or paid back before this action was commenced, and as a condition of recovery. If this action could not be maintained, clearly the plaintiff was entitled to retain the money. If it could be maintained, and there was no cause of action for weekly indemnity, but was for loss of feet, the most the company has a right to claim is that the payment may be used as a setoff to the plaintiff’s claim.
The motion to set aside the verdict and for a new trial was properly overruled. There is no other error assigned ■requiring particular notice. We think that there was no error of which the defendant has a right to complain.
By the Court.— The judgment of the circuit court is affirmed.