Arkansas Valley Ry., Light & Power Co. v. Ebeling

• Court: Colorado Supreme Court
• Writing for the Court: GARRIGUES, J.
• Citation: Arkansas Valley Ry., Light & Power Co. v. Ebeling, 160 P. 1034, 62 Colo. 105 (Colo. 1916)
• Decision Date: 06 November 1916
• Docket Number: 8569.
• Parties: ARKANSAS VALLEY RY., LIGHT & POWER CO. v EBELING.

160 P. 1034

62 Colo. 105

ARKANSAS VALLEY RY., LIGHT & POWER CO. v EBELING.

No. 8569.

Supreme Court of Colorado

November 6, 1916

Error to District Court, Pueblo County, J.E. Rizer, Judge.

Action by Louis Ebeling against the Arkansas Valley Railway, Light &amp Power Company. Judgment for plaintiff, and defendant brings error. Reversed, and cause remanded, with directions to the lower court to dismiss the action.

William J. Miles, of Denver, for plaintiff in error.

Lyman L. Henry and W.S. Palmer, both of Pueblo, for defendant in error.

GARRIGUES J.

The parties in this opinion will be denominated as in the court below, plaintiff and defendant. Plaintiff was injured by reasons of coming in contact with an electric wire, carrying a high voltage current, while employed by the light company for which injuries he brought suit, recovered judgment, and defendant brings the case here on error.

Ebeling being employed by the light company as an assistant "trouble man," was sent to repair a light switch in a private residence July 27, 1912, where the accident occurred. A few days later he went to the office of the company, and wanted to know of its officers what they were going to do for him in the way of settlement for his injuries, and was told that they would pay his expenses incident to the accident and give him $75. This, he said, was not enough, and then declined to accept the offer. Shortly thereafter, he went again on the same errand, which resulted as before. He made frequent visits for a like purpose, and August 16, 1912, advised the company that he would accept the offer. Whereupon the following document was prepared:

"Whereas, I, Louis Ebeling, of the city of Pueblo, county of Pueblo and state of Colorado, was injured on or about the twenty-seventh day of July, 1912, while in the employ of the Arkansas Valley Railway, Light & Power Company, under circumstances which I claim render my said employers liable to me in damages; and whereas, my said employer denies any liability for said injuries; and whereas, both parties desire to compromise, and have agreed to adjust and settle the matter for the sum of seventy-five and No/100 dollars: Now, therefore, in consideration of said sup, which it is hereby acknowledged has been to me or in my behalf paid by my employer, I do hereby compromise said claim and release and forever discharge by said employer, their agents and employés from any and all liability by reason of said injuries. Employment has not been promised me as a condition of this settlement.

"Witness my hand and seal this 16th day of August, 1912, at Pueblo, Colorado.

"Louis Ebeling. [Seal.]

"F.W. Insul,

"E.F. Stone,

"Witnesses."

This instrument after being read to plaintiff, was handed to him for examination, and after having it a sufficient time for, and apparently, reading it, he signed it in the presence of two witnesses. September 9 or 10, 1912, Ebeling returned to his former work, and continued in the company's employ until the latter part of May, 1914, when he gave up his position and commenced this action July 17, 1914. He testified on the trial that he had no memory of any negotiations for a settlement, or of signing the release; that at that time his memory was a blank; that he came out of this period of lost memory in December, 1913. At the conclusion of the evidence, defendant moved for a directed verdict, which was overrules, and upon this point a reversal was asked.

The only reason given by plaintiff why he should not be bound by the settlement and release is because, as he avers, he did not remember signing it, though he he does not deny his signature. He does not claim fraud, misrepresentations improper inducements or solicitation on the part of the company; he simply says he has no recollection of the settlement or of signing the release. The evidence shows that he went to the company's office day after day, where he solicited the settlement; that he remained in the company's employ as before, for a long time thereafter, performing his labor and receiving his pay as other employés, and, aside from his statement, there is no evidence to show that he did not understand the transaction. Plaintiff resumed his old position, and worked for the company as before, for a year and a half after the accident and settlement, and made no complaint in any way, or intimated that he...