Indiana, D.&W.R. Co. v. Fowler

• Decision Date: 18 February 1903
• Citation: 201 Ill. 152,66 N.E. 394
• Court: Illinois Supreme Court
• Parties: INDIANA, D. & W. R. CO. v. FOWLER.

201 Ill. 152

66 N.E. 394

INDIANA, D. & W. R. CO.

v.FOWLER.

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from appellate court, Fourth district.

Action by Solomon Fowler against the Indiana, Decatur & Western Railroad Company. From a judgment of the appellate court (103 Ill. App. 565) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Geo. W. Fithian (R. D. Marshall, of counsel), for appellant.

Shamhart & Williams, for appellee.

CARTER, J.

This is an appeal from a judgment of the appellate court for the Fourth district affirming a judgment of the circuit court of Jasper county in favor of appellee for $1,000 recovered for a personal injury. On July 16, 1900, the appellee, Solomon Fowler, was a passenger on the train of the appellant going from Willow Hill to Ste. Marie. During the journey a bridge gave way, wrecking the train, and appellee was injured. Nine days later, while appellee was still suffering on account of the injuries received, the superintendent and an attorney of the appellant, together with the physician attending appellee, called at his home, and secured his mark as a signature to a paper purporting to be a release of all claims for damages for the personal injuries received on account of the wreck, with a receipt for $35 subjoined. Appellee claims that he did not know what he was signing, and that the release was secured by fraud and circumvention. He brought this suit for damages, and on the trial the appellant company admitted everything charged in the declaration, except as to the extent of his injuries, and relied on the release as a complete bar to a recovery. The case was tried twice, each time resulting in a verdict for appellee.

At the instance of appellant, the following special interrogatory was submitted to the jury: ‘Was the receipt offered in evidence by the defendant obtained by the defendant from the plaintiff by fraud and circumvention?’ The jury answered, ‘Yes.’ The question whether the release was executed by appellee with full knowledge of its purport, and under circumstances that would bind him, was one of fact, and has been settled by the jury and the judgment of the appellate court adversely to appellant. National Syrup Co. v. Carlson, 155 Ill. 210, 40 N. E. 492;Illinois Central Railroad Co. v. Welch, 52 Ill. 183, 4 Am. Rep. 593. The court properly refused the instruction asked to find for defendant, as there was sufficient evidence before the jury to sustain a verdict for the plaintiff.

Counsel for appellant contend that appellee should have offered to return the amount paid him by appellant before bringing this suit. In Chicago, Rock Island & Pacific Railway Co. v. Lewis, 109 Ill....