ON MOTION ROE REHEARING.
Counsel for the plaintiff in error have cited the case of Butler v. Richmond & Danville R. Co., 88 Ga. 594 (15 S. E. 668), as controlling. In that case, to an action for damages for a personal injury the defendant pleaded the payment of $18 in full settlement of all damages. The plaintiff contended, and so testified, that he was an illiterate person, that he had a claim against the company for wages, which was paid to him, and that he signed the paper without knowing its contents, and thinking that he was signing an ordinary pay-roll. It was held, that if payment was made to him of a claim or debt entirely independent of any claim for damages, but he was fraudulently induced to sign a paper purporting to be a settlement for damages, he would not be compelled to tender back the amount received in order to make the question of fraud in procuring his signature. In his opinion Mr. Chief Justice Bleckley said: “It is quite true that if the plaintiff had made any settlement or entered into any accord touching the injury complained of in his declaration, and sought to open the same on the ground of fraud, he would have to tender back any money which had been paid to him in consequence or by way of execution of the settlement or accord. East Tennessee. &c. Ry. Co. v. Kayes, 83 Ga. 558 [10 S. E. 350]. . . On his theory, the money he received was no fruit of such a contract, and could not have been, because none such was ever made. The money, as he contends, was paid him as wages which he claimed then and still claims as due him under a previous and wholly different contract.”
*747In .the case.at bar, the alleged tort was a single one, — the'careless striking by a train .of the defendant of a wagon which the plaintiff was driving. From this tort several items of damage were alleged to have resulted, including a personal injury to the plaintiff and damages to his mule and wagon. The petition was originally brought to recover all three elements of damage. The defendant pleaded a written release by which it was agreed that in consideration of $50 paid to the plaintiff, the receipt of which was ackñowl-. edged, “1 hereby accept the same in full settlement of all damages due, by reason of the premises [referring to a preceding recital in regard to the occurrence], and hereby acquit said corporation, its. successors and assigns, of any and all damages arising out of said act, injury or injuries, transaction or accident, heretofore suffered, or hereafter to be suffered, and all losses of any and every character which have or may result therefrom. . . The above-named $50 is also in full settlement of damage done to my wagon and mules, on account of collision between my wagon and freight-train on W. & A. track going north, known as extra 173.” Thereupon the plaintiff amended by alleging that the release was procured from him by-fraud, that the agent of the defendant pretended to be settling with him only for the mule and wagon, and did not read the paper to him, he being illiterate. He recognized the necessity for a retender of the amount received by him, and alleged that he had made it before .bringing the suit. By another amendment he struck from the petition any claim for damages on account of his mule and wagon, leaving the suit to stand for damages for the injury to his person.
It will thus be seen that the paper signed purported to be a full settlement of all damages arising from the collision between the train and the wagon, both to his person and to his wagon and mule. He knowingly received compensation for some of the damages arising from such a collision. He nevertheless contends, that,, if his tender was not good, he can still recover for the injury done to his person. The difference between this contention and that involved in the Butler case, supra, is clear. The distinction between receiving money, on account of a claim or debt entirely distinct and receiving money as payment for some of the damages resulting from, a tort is clearly drawn in W. & A. R. Co. v. Burke, 97 Ga. 560 (25 S. E. 488), and Petty v. Brunswick & Western Ry. Co., 109 Ga. 666, 675 (35 S. E. 82). Motion denied.