The plaintiff's action is to recover damages for personal injuries sustained while an employé of the defendant company, and the suit finally went to the jury on a count under subdivision 5, of section 3910 of the Code of 1907, and charged the injuries to the result of the negligence of one W.S. Brown, who on behalf of the defendant was in charge or control of the engine and car upon the railroad track of the defendant. The issues were made on the general issue in short by consent, with leave, etc., and replication in short by consent, etc. The general charge was requested by the defendant, and refused by the court, and this action of the court is the basis of the first assignment of error. There was ample evidence to sustain the plaintiff's allegations in the complaint and therefore the charge was properly refused.
There was also sufficient evidence of the duties of W.S. Brown, named in the complaint as defendant's agent, in charge of defendant's engine on its railroad track, to go to the jury, and therefore defendant was not entitled to the general charge on this account. There is evidence to the effect that Brown was there in defendant's yard as its yard foreman, directing and supervising the moving of the cars and engine, for the purpose of carrying on defendant's general business, and that the engine driver moved as directed by Brown, and there is an entire absence of any proof to the contrary. There is evidence tending to prove that Brown who was the defendant's yard foreman, was having the train of cars placed for the purpose of loading a piece of heavy machinery, lying near the track; that at that time the engineer was subject to and obeying his signals; that plaintiff was at his duties near the track, depending *Page 362 on his superiors to so conduct the business of defendant as not to hurt him; that the heavy flask that was jammed against defendant, resulting in the injury complained of, was in full view of Brown and in close proximity to the track; that Brown knew that some of the cars in the train were wider than others; that the backing of the train was on a curve, and Brown was the only employé of defendant having a view of the whole situation. With this knowledge he signaled the engine back, which resulted in one of the wider cars running against the heavy flask and causing it to fall on defendant, breaking his leg and otherwise injuring him. These facts clearly presented a question for the jury on the question of negligence.
The defense most strongly urged by appellant, and which is presented in various ways, by numerous written charges requested and by exceptions to the court's oral charge, is that, notwithstanding the defendant's original liability, after the injury had occurred, the plaintiff, for a valuable consideration, signed a written release, discharging the defendant from all liability by reason of the injury complained of. This question was raised under the general issue in short by consent, with leave to give in evidence any matter of defense as if the same had been fully pleaded, and by a replication of the same nature. This presents the question on the facts and on the charge of the court, which according to the plaintiff's contention are:
The plaintiff was severely injured by having his leg broken and being otherwise bruised and hurt, as a result of the negligent act of one of defendant's agents; that he was carried to the hospital by direction of defendant, and put under the care of a physician and a nurse; that when he entered defendant's employ, and at the time of his first pay day, defendant deducted from his wages $1.50, which he was told was for insurance and medical attention; that plaintiff acquiesced in this, without definitely ascertaining what the insurance covered; that this premium had been paid before he was hurt; that plaintiff was in the hospital, "fiat on his back from the injury," under the constant care of a surgeon and a nurse, suffering the pain incident to a broken leg and the effect upon his nervous system, except in so far as the suffering was alleviated by opiates administered by the attending physician; that the injury was of such a serious nature that as a result plaintiff was confined to the hospital and under the constant care of a physician and trained nurses for several months, and at times suffered great pain and at times was unconscious; that while he was in the hospital the first time, about three weeks after his injury, a man came to his bedside, representing himself as an insurance agent for the pipe works plaintiff worked for, and he wanted to pay plaintiff his insurance, which was half time; and that Dr. Winn, the attending physician, had said plaintiff would be out in five weeks, which would make the insurance $50. He offered plaintiff the $50 in money, in payment of the insurance, and plaintiff accepted it, with the understanding that he still had coming half time from the company during his disability. The insurance man then, without saying anything about a discharge of liability, or saying anything that would lead plaintiff to believe that he was other than as he had represented himself to be, handed the $50 to plaintiff, and at the same time handed plaintiff a paper to sign, which plaintiff testified, without objection, he thought was a receipt for the money, and which paper plaintiff signed without reading. This paper afterwards proved to be a paper purporting to release defendant from all liability by reason of the injury to plaintiff. It was shown that plaintiff could read and write a little, but not much, having worked on a farm all his life.
It appears from the testimony of defendant's cashier that plaintiff had paid to defendant an insurance premium covering an indemnity for one-half time during disability, and therefore at the time of the injury plaintiff was entitled to indemnity in some amount from somewhere, and he had a right to rely upon the statement of the agent that he was being paid the $50 on the insurance, and still was insured to the extent of half pay during the time of his disability, and if the agent made the representations to plaintiff, as testified to, that he was the insurance agent, that he was there for the purpose of settling the insurance, that the money paid was paid as insurance money, that plaintiff received it as such, that in the entire conversation there was nothing to lead plaintiff to believe that the transaction related to any other matter, that the paying of the money in currency and the signing of the paper were simultaneous, and relying on these representations and the general understanding brought about by the agent, at a time when plaintiff was still in bed, suffering as a result of defendant's negligence, plaintiff signed the paper introduced in evidence, it was a fraud and void; the facts and circumstances when taken together being equivalent to a false representation as to the contents of the paper signed. Beck Pauli L. Co. v. Houppert Worcester, 104 Ala. 503, 16 So. 522, 53 Am. St. Rep. 77; Burroughs v. Pacific Guano Co.,81 Ala. 255, 1 So. 212; Johnson v. Cook, 73 Ala. 537. In the Beck Pauli L. Co. Case, supra, there was no direct misrepresentation of the instrument actually signed and held to have been obtained by fraud, and in the Johnson v. Cook Case, supra, Mr. Justice Stone said: *Page 363
"If the signature of the deed was obtained by misrepresentation of its contents, or by any other fraudulent means, by which Cook was induced to sign the instrument, of the contents of which he was ignorant, * * * this constitutes fraud," etc.
Indeed, appellant's counsel seems to concede that the facts on this phase of the case were sufficient to go to the jury, for them to say whether the signature to the release was obtained by fraud. But the defendant says plaintiff cannot set this up in the case to avoid the effect of the release, because he has not paid back, or offered to pay back, the $50 paid to him by the agent at the time the paper was signed. The rule is perfectly well settled in this state that, where a person would disaffirm a contract for fraud, he must return whatever he received under it, and this must be done promptly. B. R., L. P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; St. L. S. F. R. Co. v. McCrory, 2 Ala. App. 531, 56 So. 822.
But in the instant case, if the contention of the plaintiff is true, the money received by him at the time of signing of the receipt was his by right of his contract of insurance, entirely separate and apart from any claim which he held against the defendant by reason of its negligent breach of duty. It was shown that plaintiff paid a premium, which entitled him, in case of injury, to medical attention and one-half time pay; and it was shown by the testimony of plaintiff that this obligation to him had never been discharged, unless it was so discharged and canceled by the payment of the $50 to him. If this is true, the payment of the $50 was not the consideration for the signing of the papers; but it presents an entirely separate transaction, not available to defendant in this suit, and there was no duty resting upon the plaintiff to return the money or to offer to return it. In a suit by plaintiff to enforce the balance due for half time during his disability, a different question would be presented. In Western Ry. of Ala. v. Arnett, 137 Ala. 414-426, 34 So. 997, 1001, this distinction is recognized by the learned justice writing the opinion, where he says:
"Moreover, the replication set up that the $25 was a gift by defendant to plaintiff."
And this same distinction is recognized and reaffirmed in the case of B. Ry., L. P. Co. v. Jordan, 170 Ala. 538, 54 So. 280, in the opinion rendered by the present Chief Justice. In all of the cases cited and relied on by appellant the money paid was the consideration for the signing of the contract and related to the obligation claimed to have been discharged, and none of them ate in conflict with the present holding or the authorities herein cited. The rule is well stated in the case of Mullen v. Old Colony R. Co., 127 Mass. 86, 34 Am. Rep. 349; also in O'Neil v. Lake Superior Iron Co., 63 Mich. 690,30 N.W. 688; Meyer v. Haas, 126 Cal. 560, 58 P. 1042; Cleary v. Municipal E. Light Co., 19 N.Y. Supp. 951;1 Bramble v. C., F. S.E. R. R., 132 Ky. 547, 116 S.W. 742; Tallassee Fall Mfg. Co. v. Taunton, 16 Ala. App. 578, 80 So. 152. If as a matter of fact the $50 was paid to plaintiff as insurance due him, and the insurance was due him, as is shown under one phase of the evidence, the plaintiff only got what he was entitled to, and the paper claimed to be a release was without any consideration, and for that reason would be void.
There is nothing in appellant's assignments of error based on the trial court's refusal to charge that plaintiff was only entitled to recover nominal damages. Plaintiff's evidence showed a decrease in earning capacity by reason of the injury, and there was ample evidence to authorize the jury to find the amount of damages shown by the verdict.
That part of the oral charge of the court with reference to contributory negligence, to which exception was reserved, is not quite clear, and, taken alone, might be said to be misleading; but, when taken in connection with the whole charge and the written charges, I am of the opinion that the whole case was fully and fairly presented to the jury. From this record I cannot hold that the court abused its discretion in permitting Mrs. Marler, the wife of plaintiff, to testify, after she had heard a part of the evidence.
I have not dealt with the errors assigned in detail, but the general principles herein announced will suffice to express my views of the law of this case.
1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 65 Hun, 621.