#### Perry *v.*The M. O'Neil & Co.

*A void release of cause of action for damages*— Is *not a bar to such action, when*— Cause *of action for cancellation of release*— And *cause of action for damages*— May *be united in same petition, when*— Burden *of proof rests with releasor, when.*

1. A release of a cause of action for damages for personal injuries, that is void, is not a bar to such an action, and the plaintiff may, if it is set up by answer as a bar to his right of action, by reply aver the facts that make it void; but if it is not void, but only voidable, he cannot maintain his action until the release is set aside.

2. A cause of action for the cancellation of a release of damages for personal injuries and a cause of action for damages for such injuries may be united in the same petition.

3. If the execution and delivery of the release are admitted, the burden of proving it void is upon the releasor.

(No. 10817

Decided May 19, 1908.)

Error to the Circuit Court of Summit county.

In 1902 the plaintiff went into the store of the defendant to make a purchase and fell through an opening in the floor and was injured. In 1903 she commenced an action against the Company to recover for her injuries. The Company answered denying the averments of the petition and setting up a release. A reply was filed by the plaintiff but, it is said, when the cause came on for hearing it was discovered that no tender had been made, as required by the ruling in *The Manhattan Life Ins. Co.*v. *Burke,*69 Ohio St., 294, and so the case was dismissed without prejudice. In 1905 she again commenced an action against the defendant to recover for these injuries. In the first cause of action she stated *201her injuries and the negligence of the defendant and in a second cause of action she averred that the defendant company had paid her fifteen dollars for servant hire, and that they had obtained her signature to a release of her cause of action by fraudulently representing it to be merely a receipt for the money they had paid her for servant hire, she being an illiterate woman and unable to read or write except to sign her name. She pleaded a tender to the defendant of the money received and prayed that the paper writing, a copy of which she set out, might be set aside and held for naught.

The defendant answered denying the averments of negligence and set up contributory negligence on part of the plaintiff, and the plaintiff filed a reply.

When the case came on for trial the court permitted the plaintiff to withdraw her second cause of action, and granted leave to the defendant to file an amended answer. The defendant filed an amended answer, and the second defense to the first cause of action is as follows:

For a second defense to the first cause of action of plaintiff’s petition, defendant says that if it is chargeable with the negligent acts complained of therein, a fact which this defendant wholly denies, nevertheless the said plaintiff ought not to maintain this her action for that, after the injury received by said plaintiff, she permitted and requested th,js defendant to pay to Dr. Harry M. Todd, her then attending physician the amount of his bill for professional services rendered to her, which this defendant did pay and, at or about the same time this defendant, at plaintiff’s *202request, also jiaid her nursing bill; and that thereafter, to-wit: on or about February 8, 1902, the plaintiff also received and accepted from this defendant, as a full complete payment and release of all claims for damages and expenses against this defendant and arising from such injury, the further sum of fifteen dollars ($15.00), with full knowledge upon her part that she was not bound to accept the same, but that in so doing she released this defendant from any claims for damages against it arising from the injuries set forth in her petition, and thereupon and in consideration of the payment by this defendant of said sums and on or about the day last above set forth, she executed and delivered to this defendant her said receipt and release in that behalf in writing as follows, to-wit:

“Akron, Ohio, Feb. 6th, 1902.

“Received of The M. O’Neil & Co., fifteen dollars, in full settlement of any and all injuries received by me in the store of said company on the 30th day of January, 1902,- and do hereby release it from all liability or damage. -$15.00. Witness, Harry D. Todd. Mary Perry.”

And this defendant avers that by reason of the matters and things set forth in this, its second defense, plaintiff released this defendant from all liability to her by reason of the injuries complained of in her first cause of action of her petition.

The plaintiff to this defense filed the following reply:

2. For her reply to defendant’s second defense, plaintiff admits that one.Harry D. Todd did per*203form some professional services upon her immediately following her said injuries. Plaintiff further admits that on or about the sixth day of February, .1902, defendant did pay to her the sum of fifteen dollars and that on said' date she signed a certain paper writing and says that at the time of signing said paper writing, which was at her home and where said transaction occurred defendant by its agents and employes procured and induced plaintiff to sign said paper writing which she was to lead to believe by defendant" and its said agents and employes to be a mere receipt for money paid for servant hire and nothing more, but which she afterward learned from said defendant its agents and employes was a release of all claims and damages for injuries set forth in her petition.

Plaintiff says that at the time she signed said paper writing she was confined to her bed, was suffering great bodily and mental pain as the result of her injuries, was under the influence of opiates was in no condition to consider the effect of said paper writing, is an illiterate woman, unable to read or write except to sign her name, and no one was present to whom she could look for advice or direction.

That while she was sick and disabled the said defendant by its agents and employes paid to her the sum of fifteen dollars, only ten dollars of which was paid her at the time of signing said paper writing. That plaintiff in signing said paper writing did so under a mistake as to the contents of the same, and upon the representation of the defendant its agents and employes that it was a mere receipt for servant hire as aforesaid, *204and under the impression that she was simply-signing a mere receipt and while she was physically and mentally incapacitated from acting in the matter.

Plaintiff further says that said defendant, its agents and employes, one of whom, Plarry D. Todd, was a practicing physician, represented to her that she would be well and able to be about in four weeks from the time of her said injury and that the cost of employing a servant for that time would be ten dollars, whereupon said defendant, by its agents and employes paid plaintiff ten dollars, and plaintiff signed said paper writing, not knowing that it was a release of her claim for damages against said defendant for said injuries but believing it to be a receipt for ten dollars for said servant hire and nothing more; that she did not intend to sign a release and would not have signed it, if she had known that it was other than a receipt merely for the money paid her as aforesaid.

Plaintiff- further says that at the time she signed said paper writing the defendant, its agents and employes did not make known to her that they were present for the purpose -of adjusting her claim for damages against the defendant and settling the same, as they were bound to do, knowing that she was an illiterate woman, had had no experience in such matters and that she was mentally and physically weak as a result of her said injuries and in no condition to act intelligently in the premises.

Plaintiff further says that the said paper writing herein set forth was procured by the defendant, its agents and employes from the plaintiff by *205fraud and false representation in this that defendant by its agents and employes represented to plaintiff that said paper writing was a receipt for the ten dollars for servant hire as aforesaid and nothing more and that she would be well and able to be about in four weeks from the time of her said injury and that said ten dollars was for servant hire for said period of four weeks and nothing more and that said receipt was for ten dollars only, all of which were then known by defendant its agents and employes to be false and untrue, and were made by defendant, its agents and employes with the intent to deceive plaintiff, and plaintiff relying on the same and believing them to be true executed said pretended release.

Plaintiff further says that defendant, its agents and employes fraudulently and with intent to deceive plaintiff withheld from her the fact that they were present for the purpose of settling and adjusting her claim for damages against said defendant for her said injuries, and that by signing said paper writing she would surrender any and all claim for damages against said defendant for said injuries and would be forever barred from making any claim against said defendant for said injuries, and plaintiff did not know that by signing said paper writing she would in any way prejudice her right of action against said defendant for said injuries.

Plaintiff further says that in the latter part of March, 1902, defendant paid her the additional sum of five dollars making a total sum of twenty dollars paid by defendant to this plaintiff.

Plaintiff further says that on or about the 2d day of February, 1905, plaintiff by her attorney *206for and on her behalf tendered to the defendant’s attorney for and on defendant’s behalf the sum of twenty dollars, being the amount of money paid by defendant to plaintiff as aforesaid, but said defendant’s attorney refused to accept said sum of twenty dollars, stating' that defendant had paid a sum of money to and for the benefit of plaintiff largely in excess of said twenty dollars, but which amount he could not state, whereupon plaintiff by her attorney called at the store of defendant and was informed by defendant, its agents and employes, that defendant had paid plaintiff in money, and doctor’s bills, cab hire, a dress, etc., approximately eighty-three dollars, and on the following day, February 16th, 1905, plaintiff by her attorney for and on her behalf, while denying 'that any such sum was paid to her or on her account, tendered to the defendant’s attorney for and on behalf of defendant at his office in Akron, Ohio, the sum of.$100.00 in gold, which said attorney refused to accept, and still refuses so to do.

The defendant requested the court to charge the jury before argument as follows: “The instrument set forth in defendant’s answer, to-wit: ‘Akron, Ohio, Feb. 6th, 1902. Received of The M. O’Neil & Co., fifteen dollars, in full settlement of any and all injuries received by me in the store of said company on.the 30th day of January, 1902, and do hereby release it from all liability or damages. $15.00. Mary Perry. Witness — Harry D. Todd,’ is a release of all claims and demands of plaintiff for the injuries sued upon in this case and is an absolute bar to. a recovery *207by plaintiff in this case.” In the general charge the court instructed the jury as follows:

“This court charges you as the law that a written instrument signed by the parties, or by one party and delivered to the other, is *prima facie*evidence of the truth of the contents of such instrument; that is, that it affords a presumption that the recitals made in such instrument concerning the transaction are true. This however, is likewise not a conclusive presumption; it is a disputable one and open to explanation where a want of knowledge and fraud are charged. I say further to you that fraud is not to be presumed, but must be shown by clear and convincing proof from all the facts and circumstances of the case; and the burden of proving the same is upon the party relying upon the fraud either to make his case or to constitute or to make his defense.

“On this subject of settlement or release, which is offered as a defense, the burden of proof is upon the defendant to show that the settlement was made and the release signed and executed by the plaintiff, the plaintiff all the while knowing or being advised at the time of the contents of any written release. I say to you as a matter of law, if she knew the terms and conditions of any settlement that may have been made or was advised or had read to her the terms and conditions of any written release, she would be presumed in law to know the legal effect of any such settlement or release. If, however, she did not know or was not advised of the terms and conditions of a settlement for any liability growing out of the injuries in question, then there could be no settlement and no release that would be valid in law; the minds of *208the parties would not have met, they would not have contracted with reference to any settlement or release; but if the jury find that there was a settlement then and there made simply as to doctors’ bills, nursing, hired help, or any other incident, but that said settlement did not include any liability claimed against the defendant company by reason of the injuries the plaintiff may have received in defendant company’s store on the 30th of January, 1906, then such release would not be a bar to this action, and could only be regarded by the jury in diminishing' any amount to be recovered by the plaintiff from the defendant company to the extent of any sums so paid in money or merchandise or doctors’ bills by the defendant company, and to the extent of excluding from your consideration the items included in any such settlement. If the jury find that there was a full settlement or a full release made and executed for any and all liability growing out of the injuries of the plaintiff at the defendant company’s store on the 30th of January, 1902, under these instructions, then your verdict should be for the defendant.”

The jury returned a verdict for the plaintiff and on error the circuit court reversed the judgment for error in refusing to charge the jury as requested and for error in that part of the charge above set out in which the court instructed the jury that, “the burden of proof is upon the defendant to show that the settlement was made and the release signed and executed by the plaintiff, the plaintiff all the while knowing or being advised at the time of the contents of any written release.”

*209*Messrs. Skiles, Green & Skiles*and *Mr. W. R. Talbot,*for plaintiff in error.

*Messrs. Musser, Kimber & Huffman*and *Messrs. Kohler, Kohler & Mottinger,*for defendant in error.

Summers, J.

It is said by counsel that the circuit court held that the trial court erred in refusing to instruct the jury that the release is a bar to a recovery by the plaintiff for the reason that the plaintiff could not maintain an action for damages for her injuries until the release had been set aside in a suit in equity. If a party suing to recover for personal injuries admits the execution of a release and seeks to avoid it on equitable grounds, he must obtain that relief to maintain his action, when he denies the execution of the release, or that it is his act, on the ground of want of mental capacity at the time he signed it, or that his signature to the release was procured by fraud, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which he did not intend to give, he may maintain his action without obtaining a decree. In other words, if the release is void, he may ignore it in his petition, and if it is plead as a bar in the answer, he may in his reply plead the facts that make it void; and if it is not void but only voidable, he must, to maintain his action, obtain its rescission or cancellation.

“Fraud in the execution of the instrument has always been admitted in a court of law, as where it has been misread, or some other fraud or imposi*210tion has been practiced upon the' party in procuring his signature and seal. The fraud in this aspect goes to' the question whether or not the instrument ever had any legal existence.” *Hartshorn et al.*v. Day, 19 Howard, 223.

“At common law it has often been held incompetent to a defendant suing at law on a specialty to plead that the instrument was obtained by false representations; it is a case, it is said, for equity alone. It is clearly otherwise of the execution of the instrument, as where the bond is misread to the obligor, or where his signature is obtained to an instrument which he did not intend to’ sign. In such cases fraud may be alleged at law.” Bigelow on Fraud, 53.

And in *George*v. Tate, 102 U. S., 564, Mr. Justice Swayne says of a defense at law that.defendant was induced to sign a bond by fraudulent representations, “it is well-settled that the only fraud permissible to be proved at law in these cases is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give.”

And in the *Union Pac. Ry. Co.*v. *Harris,*158 U. S., 326, an action for personal injuries and in which a release had been pleaded as a bar to the action, it was held that the court’s charge to the jury to the effect that the release was not a bar to the action if the plaintiff could not and did not read it, and signed it without understanding that it was a release of his cause of action, was not erroneous.

The decisions of our own court are in accord *211with this rule. In *DeCamp*v. *Hamma, Exr.,*29 Ohio St., 467, it is held: “In an action against the maker, by an indorsee of a negotiable promissory note, who purchased the same for a valuable consideration, .before maturity, and without notice of any fraud or infirmity as between the original parties, the defendant is not liable where it is shown: (1) That at the time of signing and delivering the note, he was induced, by fraudulent representations as to the character of the paper, to believe that he was signing and delivering an instrument other than a promissory note;. (2) That his ignorance of the true character of the paper was not attributable, in whole or in part, to his own negligence in the premises.”

We have no equity courts, but, in obedience to constitutional mandate, justice is administered without reference to any distinction between law and equity, in the same court and by one form of proceeding, and it is provided by Section 5058, Revised Statutes, that plaintiff may unite several causes of action in the same petition, whether they are such as have heretofore been denominated legal or equitable, or both, when they are included in the same transaction, or transactions connected with the same subject of action, so that it is not necessary in such instances to obtain a decree of rescission or of cancellation before commencing an action to recover damages for personal injuries, but in the same action the plaintiff may by one cause of action seek the rescission or cancellation of a release and by another cause of action ask for damages for his injuries, and if the equitable relief is granted by the judge, as if a chancellor *212sitting to administer equity, the release then can be no bar to the cause of action for damages.

*Blair et al.*v. *The Chicago & Alton R. R. Co.,*89 Mo., 383, was an action for personal injuries. The petition contained two counts, the first asking to have cancelled and held for naught the release executed by the plaintiff, the second was an action at law claiming damages for the injuries. The answer to the first count was a general denial, accompanied by a refusal of the tender. The answer to the second count was a general denial accompanied by a plea in bar setting up the release. The reply to this was a reiteration of the allegations of the original petition as to the non-binding force of the release. The equity branch of the case was heard and a decree entered cancelling and holding for naught the release, and ordering the plaintiffs to deposit with the clerk of the court thirty dollars the amount of the tender for the benefit of the defendant. At the next term after the decree had been entered cancelling' the release, the trial was had in the action at law for damages and resulted in a verdict and judgment in favor of the plaintiff. It was held that under the code the count in equity to set aside a release of damages for personal injuries can be joined with one at law for the recovery of the damages, and that a court of equity will grant relief notwithstanding the existence of a remedy at law, unless the defendant pleads the remedy at law in defense of the equitable suit.

*Girard*v. *St. Louis Car Wheel Co.,*123 Mo., 358, was an action to recover damages for personal injuries. It is held: “(1) In an action *213for damages for personal injuries defendant, by answer, set up an alleged agreement in the nature of a release or discharge of the cause of action. To that plea, plaintiff replied that the agreement had been obtained by fraud, while he was unable (because of pain and suffering, caused by the injuries) to comprehend his act in signing it, and that he never assented to the agreement; *held,*that the reply to the plea of a release was sufficient in an action at law, without resorting to equity to cancel that document. (Gantt, Sherwood and Burgess, JJ., dissenting.) (2) Where a reply of fraud is made to a plea of release, and no point is interposed in the trial court of any deficiency in the reply on account of an omission to tender back the benefits received under the agreement for a release, and the record shows that those benefits were accounted for in the judgment, there is no prejudicial error in the omission to allege or prove an offer to' return those benefits, even if such offer were otherwise necessary to avoid the release.” It was contended that the action for damages was not maintainable, because the release had not been set aside by a decree in equity, and *Blair*v. *Chicago & Alton R. R. Co., supra,*was cited in support of that contention. But it was said in the opinion, “while that course may be adopted, it is not essential where the alleged fraud goes to the integrity of the release as a legal agreement.” The case is very fully considered, several of the judges writing separate opinions, and it is paiticularly instructive upon the question of the necessity of a tender. But it is unnecessary to consider that question here, as in the present case it is *214admitted that the plaintiff tendered the amount that had been received.

*Homuth et al.*v. *Metropolitan St. Ry. Co.,*129 Mo., 629, was an action for personal injuries in which a release was pleaded as a bar. *Held:*“Whether or not a release interposed as a defense to an action for damages for personal injuries was obtained by fraud, may be tried as an issue at law and without first resorting to equity for the cancellation of such release. Where, however, the defendant has performed its part of the release agreement, and plaintiff admits its execution, and understood at the time its legal effect, such release is a bar to an' action at law until. set aside in equity.”

*Och et al.*v. *M. K. & T. Ry. Co.,*130 Mo., 27, was an action for personal injuries. The defendant set up a release as a bar. A majority of the court was of opinion that upon the plaintiff’s own showing the release was not void but only voidable and held that until set aside in an equitable ■ proceeding for fraud in its procurement, it was a bar to an action for injuries caused by the accident and that “an executed contract between competent parties, founded on a valuable consideration, not immoral or prohibited by statute, nor against public policy, is not void as between the parties thereto, however fraudulently obtained.”

*Hancock*v. *Blackwell,*139 Mo., 440, was an action for slander. The defendant answered setting up a release as a bar to the action. The plaintiff replied admitting that she signed the release and averring that the same and her signature thereto had been procured by fraud, falsehood and undue influence brought to bear on her by the *215defendant and that the same was wholly without consideration. The reply did not seek to avoid the bar of the release on the ground that the release was void, but merely on the ground that it was voidable, and it was held that: “Said release, until set aside, was a bar to this suit; and before it could be maintained, either an original action in equity must be brought to set aside such release, on the ground of fraud in obtaining it, or, as the offer to refund the money was made before the commencement of this suit, the same end could be reached by a separate count in the petition in the slander suit.” In the opinion it is said: “In such circumstances the issue of fraud should be tried by the court; and the evidence in order to justify setting aside the release should be clear and satisfactory, such as will preponderate over the presumption or evidence on the other side.”

• The case of *Courtney*v. *Blackwell*was again before the court in 150 Mo., 245. The case is quite instructive on several questions of practice. Upon the return of the case, the plaintiff amended her petition, as suggested in the opinion, and in the first count set up the release and averred that upon learning of the misrepresentations she had tendered to the defendant the ten dollars, with interest thereon, that he had paid her for the release, and prayed that it be cancelled and set aside, and in the second count set up her claim for damages. In answer to the first count, among other defenses, the defendant pleaded the statute of limitations. Plaintiff filed a general denial. Upon a trial had on the first count of the petition, the court entered a decree setting aside and cancelling the release. The cause then proceeded to trial on *216the second count, resulting in a verdict for plaintiff, on which judgment was entered. It was contended that the court erred in forcing the defendant to trial upon the second count, pending the defendant’s motion for a new trial on the first count of the petition, and the excluding of the release as a defense to the action on the second count. The code of the state provides that when such causes of action are united, separate trials may be had for each cause of action at the same or different terms of the court, as circumstances may require, but that the judgment upon each separate finding shall await the trial of all the issues. This was not done in that case, but.the court held that the premature entering of the decree was not prejudicial. On the trial on the second count, the defendant objected to the introduction of any evidence in the case, or to any proceeding whatever in that case, until there had been a final disposition of the case on the first count, both in that court and in the appellate court. In the opinion it is said: “The statute does not contemplate a dismemberment of the action at any stage of the proceedings, whereby a part of it might be brought to this court and be pending here, while the other part of it was left behind in the circuit court. On the contrary, the .obvious meaning is, that the whole case shall be disposed of in the trial court before it is in condition for appeal.” It was also held that the amended petition, asking for a cancellation of the release, did not set up a new claim not before asserted, and that the action was not barred by the statute of limitations.

*The Eagle Packet Co.*v. Defries, 94 Ill., 598, *217was an action on the case to recover damages for injuries sustained by the plaintiff while a passenger on one of the appellant’s steamboats. To the declaration the defendant pleaded the general issue and a special plea of release. “It appeared the plaintiff was an illiterate woman, unable to read or write, and the paper was obtained from her during her illness consequent upon an injury, by the physician who was attending her, in the absence of any of her friends to whom she could look for advice, the physician explaining to her that the servants of defendant had expended the sum of money named in the paper for her benefit, and wanted something to show what the money had been expended for, and this was all the explanation he made.” The court held that the jury properly found the plea of release was not sustained.

In *Chicago, Rock Island & Pac. Ry. Co.*v. *Lewis,*109 Ill., 120, it is held: “An instrument absolutely void need not be rescinded in order to remove it out of the way to the assertion of a right. A contract void on account of fraud, or for any other reason, is in law as though it had never been executed. A release of all claim for damages growing out of a personal injury caused by negligence on the part of defendant, if fairly obtained by the agents of defendant (a railway company), and under standingly executed by the plaintiff, is an effectual bar to an action to recover for such injury. If a party, however, after receiving a serious personal injury as a passenger on a railway train, through negligence of the company, is induced to sign a release of all damages by the agents of the company, through their *218representations or acts, which induce in his mind the belief he is only signing a receipt for money paid him at the time for loss of time and expenses incident to the delay resulting from the accident, and not as a discharge of the company for the injuries sustained, or if such release is procured by fraud and circumvention, it will be void as to the party so induced to execute the same. Fraud vitiates everything it touches, and a party will not be allowed to avail of an undue advantage obtained over another by fraudulent practices. Or if a person, while under the influence of. opiates to such an extent as to be incapacitated to contract, is induced to execute a release of damages for a personal injury, it will not be obligatory upon him, and will be no defense to an action brought by him. Where a person was severely injured as a passenger on cars of a railway company, and in a few hours after being taken to a hotel, after the injury, was induced by the agents of the company to sign a release of his right of action, under the belief he was signing only a receipt for money, which belief was caused by their fraudulent practices and representations, and it appeared that at the time he was suffering great physical pain and laboring under the effect of opiates, it was held, that under the circumstances he was not chargeáble with such negligence in executing the release without having first read the same, as to preclude him from asserting the truth as to the manner in which his signature was procured.” See also *The National Syrup Co.*v. Carlson, 155 Ill., 210.

In *The Pawnee Coal Co.*v. *Royce,*184 Ill., 402, it is held that: “Actual, intended fraud in the procurement of a release of damages for personal *219injuries must exist in order to excuse a return of the consideration by the plaintiff before bringing suit and to render the release of no effect in law.” And again: “In the cases where a release has been executed and its effect is sought to be avoided, the circumstances of its execution and whether there is sufficient cause to avoid it, as well as whether a return of the consideration therefor is necessary, are questions of fact for the jury under proper instruction's.”

In *The Pioneer Cooperage Co.*v. *Romanowicz,*186 Ill., i, it is held: “A release of damages may be regarded. as not fairly obtained, and hence as inoperative where the party executing the release is unable to read it and it is not read to him, but is represented to him by the- party claiming the benefit, as being for another purpose.” To the same effect is *Indiana, Decatur & Western Ry. Co.*v. *Fowler,*201 Ill., 152.

*Schultz*v. *Chicago & N. W. Ry. Co.,*44 Wis., 638, was an action for personal injuries. The answer set up a release. The plaintiff, after the answer was served, tendered the money to defendant’s attorneys. The plaintiff testified that he did not know the contents of the instrument when he signed it, and would not have signed had he known the nature of it. He denied that he ever settled with the defendant and testified that he supposed the money he received was to pay him for the time he was laid up with his wounds. *Held:*that he was not bound by the release if he signed it without knowing its contents or intending to sign such an instrument.

In *Bussian*v. *Milwaukee, Lake Shore & W. Ry. Co.,*56 Wis., 325, it is held: “A release of *220all claims, which is pleaded as a bar to an action at law, may in that action, be shown to have been obtained by fraud, misrepresentation, or undue influence, if all the parties to the release are parties to the action, and the finding of the jury upon the question of fraud has the same force as their verdict upon any other issue in the action.” *Lusted*v. *Chicago & N. W. Ry. Co., 71*Wis., 391, is to the same effect.

In *Gibson*v. *Western N. Y. & Pa. R. R.,*164 Pa. St., 142, the case is stated as follows: “In an action against a railroad company to recover damages for personal injuries, defendant set up as a defense a release executed by plaintiff. Plaintiff swore that the release was executed when he was under the influence of anaesthetics, and positively denied the exercise of any mental faculty on his part in the execution of the paper. • Five disinterested witnesses, four of whom were physicians, testified that plaintiff was perfectly rational at the time he executed the release. *Held:*that the case was for the jury. Plaintiff’s claim was of right according to law and not of grace according to equity. The dispute was as to the fact of the deed, not as to the equities under it.” *Julius*v. *Pittsburg, Allegheny & Manchester Trac. Co.,*184 Pa. St., 19, is to the same effect.

In *Dixon*v. *Brooklyn City & N. R. R. Co.,*100 N. Y., 170, a release was set up as a bar to an action for personal injuries, and there was testimony tending to prove that at the time of its execution the plaintiff was in a condition of mind that rendered him incompetent to appreciate the character of the instrument that he executed. It is held that the question is for the jury.

*221In *O’Meara*v. *Brooklyn City R. R. Co.,*16 App. Div. (N. Y.), 204, it is held: “Where a release is put in evidence as a defense to the plaintiff’s claim in an action to recover damages for personal injuries, the plaintiff may prove that she signed it, not knowing its contents, and that she was induced to do so by false representations, or any other facts tending to impeach it.”

In *Missouri Pacific Ry. Co.*v. *Goodholm,*61 Kans., 758, it is held: “Where personal injuries have been suffered from which a liability exists, and a release therefor has been fraudulently procured, an action for damages may be maintained without first obtaining a decree to rescind or to cancel the release, and the plaintiff is not precluded from attacking a release so obtained, when it is set up as a defense, because he has not restored or tendered back the amount received by him at the time the release was obtained.”

In *Mullen*v. *Old Colony R. R.,*127 Mass., 86, it is held: “If a defendant obtains the signature of plaintiff to a paper, purporting to be a settlement and discharge of the cause of action, by fraudulent representations that it is merely a receipt for a gratuity, the plaintiff may maintain his action without returning the money paid him.” To the same effect is *O’Donnell*v. *Inhabitants of Clinton,*145 Mass., 461.

In *Viallet*v. *Consolidated Ry. & Power Co.,*84 Pac. Rep., 496, it is held: “In an action by a passenger for injuries caused by collision of street cars, evidence tending to show that a release signed by plaintiff at the solicitation of defendant’s physician while he was treating plaintiff professionally was obtained by misrepresentation, held to *222require submission to the jury of the question of the validity of the release.”

*The Chicago & N. W. Ry. Co.*v. *Wilcox,,*116 Fed. Rep., 913, was a suit in equity to rescind a release of a claim for personal injury on the ground of fraud, undue, influence, and mistake, and is instructive where the case is one for the determination of the. court.

In *Alabama & Vicksburg Ry. Co.*v. *Jones,*73 Miss., no, it is held: “In an action for damages, by an old and ignorant man, for injuries received by a 'kicked' car, necessitating the amputation of a foot, where the railroad company, within two days after the injury, and within twelve hours after the amputation, and while he was suffering from pain and the effects of opium, and therefore incapable of acting rationally, induced him to release his claim for a small cash payment, it is proper, where the company relies upon such release, to instruct the jury that the plaintiff had a right to know the facts of the injury and their effect upon his right to repudiate the release, voidable for fraud, and that the release was not binding, unless he, subsequently, when competent to act, with full knowledge of the facts, and his rights under them, and of his right to disaffirm, ratified the same.”

In *Cassilly*v. *Cassilly,*57 Ohio St., 582, it is held: “Where mother and son enter- into a written contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established', that she could not read' writing, and on account of the *223confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him.”

In the present case, it will appear by examination of the reply that the plaintiff avers that she is illiterate, unable to read or write except to sign her name, and that in signing said paper writing she did so under a mistake as to its contents and upon the representations of the defendant, its agents and employes, that it was a mere receipt for servant hire as aforesaid, and under the impression that she was simply signing a mere receipt, and while she was physically and mentally incapacitated from acting in the matter. There are many other averments in the reply placed there for the purpose of avoiding the release. The above averments, and some others, are of facts, which, if proven, would show that the release was not voidable but void. There are other averments which, if proven, would merely show that the release was voidable. These latter averments did not make a proper issue in an action at law, but the averments of facts tending to show that the release was void were proper, and the common pleas court properly refused the request to charge the jury that the release was a bar to the action.

The remaining question is respecting the instruction as to the burden of proof. The court instructed the jury that the burden was upon the plaintiff to prove the fraud averred but also instructed the jury, in effect, that the release' was

*224not a defense to the action unless the defendant proved the settlement and that there was no fraud on the part of the defendant below in obtaining the release, and to show that the plaintiff had full knowledge of what was contained in the release. This question was made in almost precisely the same way in *The Addyston Pipe & Steel Co.*v. *Copple,*94 Ky., 292. It is there held: “Where the defendant in an action to recover damages for personal injuries relied for defense upon a writing signed by the plaintiff acknowledging the receipt of a certain sum from the defendant 'in full settlement’ of all claims against defendant on account of the injuries received, it was error to instruct the jury that the burden was on the defendant to show that the plaintiff fully understood and assented to the agreement as a settlement of his claim for damages. The presumption is conclusive that the plaintiff so understood the writing, and he is bound by it with that meaning unless he attacks it by a plea of mistake, and then sustains that plea by the weight of evidence.”

In *Lusted*v. *Chicago & N. W. Ry. Co.,*71 Wis., 391, 398, it is said: “The trial court, in effect, held that the burden of impeaching the release was upon the plaintiff, who must show with reasonable certainty that it was not intended to include the claim for personal injury; and the jury were told that if the plaintiff signed it after the subject of his injuries was talked over, understanding that it was a release of that claim,' whether he then knew the extent of his injuries or not, if he executed the instrument understandingly, he was bound by it.” This charge was approved.

The charge in the present ease is not unlike this. *225It is true, if he executed the instrument undérstandingly, he was bound by it, but notwithstanding the instruction that the burden of impeaching the release was upon the plaintiff and that he must show with reasonable certainty that it was not intended to include the claim of personal injuries, the statement that “if he executed the instrument understandingly, he was bound by it,” probably would mislead the jury. He was bound by it even though he did not understand it, unless by the weight of the evidence he impeached it for fraud in its execution.

The release as a defense does not negative the plaintiff’s cause of action, but is a bar to a' judgment upon it, and the burden of proof to establish it is upon the defendant; but there is a distinction between the burden of proof and the burden of evidence, or the burden to go forward with the evidence. When the defendant proved, or the plaintiff admitted, the receipt of the fifteen dollars, her signature to the release and its delivery to the defendant, the defendant had *prima facie*established this defense and the burden was upon the plaintiff, by the weight of the evidence, to prove fraud in the execution of the release.

The instruction was, in effect, that the burden of proof was on the defendant to show not only that the plaintiff executed and delivered the release for the consideration named, but also that she knew the contents of the release.

In *Och et al.*v. *M. K. & T. Ry. Co.,*130 Mo., 27, 44, it is said in the opinion: “She signed her own name to the paper, and the burden rested upon her to show that its execution was obtained from her by fraud and deceit.”

*226When the signature is admitted the presumption is that the party signing the instrument understood its terms, and he is bound by it unless he can prove facts that will avoid it.

In *Wright*v. *Northampton & Hertford R. R. Co.,*125 N. C., 1, where the execution of a release was not disputed, the court holds that in the absence of evidence to prove fraud, it is error to submit to the jury the question whether the release is the contract of the plaintiff. In *The East St.Louis Packing & Provision Co.*v. *Hightower,*9 Ill. App., 297, it is held: “Appellee claiming that the release of all claim for damages was obtained from him by fraud, the burden was upon him to prove the fraud by a fair balance of testimony.” In *DeDouglas*v. *Union Traction Co.,*198 Pa. St., 430, it is held: “It is error to submit the question of fraud to a jury to overturn a written instrument upon slight parol evidence. The evidence of fraud in such cases must be clear, precise and indubitable, otherwise the case should be withdrawn from the jury.” To the same effect is *The Denver & Rio Grande R. R. Co.*v. *Sullivan,*21 Col., 302, and it is also there held that the release is not subject to be contradicted or varied by parol testimony. To the same effect is *Bonsack Machine Co.*v. *Woodrum,*88 Va., 512. And in *Atchison, Topeka & Santa Fe Ry. Co.*v. *Vanordstrand,*67 Kans., 386, it is held: “A person who, without reading it, signs a written contract releasing his right to maintain an action for damages resulting from an injury occasioned by the negligence of his former employer will be held to have executed the instrument with full knowledge of its contents, when his only excuse for not reading it was that *227he was ‘somewhat hurried.’ Such a contract can not be avoided by the party signing it because he relied upon ‘allusions to future employment’ made by the agent of his former employer in the negotiations consummated by the written release, which employment was not furnished him.”

The judgment is

*Affirmed.*

Price, C. J., Shauck, Crew, Spear and Davis, JJ., concur.