Lusted v. Chi. & N. W. Ry. Co.

• Decision Date: 27 March 1888
• Citation: 36 N.W. 857,71 Wis. 391
• Court: Wisconsin Supreme Court
• Parties: LUSTED v. CHICAGO & N. W. RY. CO.

71 Wis. 391

36 N.W. 857

LUSTED

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Dane county.

Action by George W. Lusted against the Chicago & Northwestern Railway Company, for personal injuries received in a railroad accident. Judgment for plaintiff, and defendant appealsJenkins, Winkler & Smith, for appellant.

Rogers & Hall and Geo. W. Bird, for respondent.

COLE, C. J.

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 left Pine Bluff station. The plaintiff rode on the train to Madison, and was first taken to the Sisters' Hospital, where his wounds were dressed by Drs. Fox and Boyd. He had a scalp wound, or cut on the head, but there was no apparent injury to the skull, and his face, neck, and hands were burned or scalded to some extent. Soon after his wounds were dressed, he was taken in a carriage to the residence of Mr. Rogers, in this city, a brother-in-law. There he remained, from Tuesday of the week he was hurt, until the following Friday afternoon, when he returned to his home in Lancaster. On Thursday, the 28th of October, Mr. Richards, the claim-agent of the defendant, in company with Dr. Boyd, visited the plaintiff at the house of Mr. Rogers, and, after some negotiations, the plaintiff signed an instrument under seal, which was in substance as follows: “In consideration of the sum of fifty dollars, to me in hand paid by the Chicago & Northwestern Railway Company, the receipt whereof is hereby confessed, I hereby release and forever discharge said railway company from all claims and demands which I now have or may have against it by reason of property belonging to me, which was burned in a wreck near Pine Bluff, October 26, 1886, and for injuries received by me at the same time; said wreck caused by an engine colliding with the train upon which I was riding.” The instrument was dated and signed. The testimony is conflicting as to what conversation was had between 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 such a clause; and that the subject of release for personal injuries was not talked about during the negotiations; that the plaintiff at the time of the negotiations was conscious and rational, and had an opportunity to read and understand the contents of the release; that he used the money received and never tendered it back to the defendant until after the commencement of this action.

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, we 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 releasing 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 release...