#### Bessey, Respondent, vs. Minneapolis, St. Paul & Sault Sainte Marie Railway Company, Appellant.

*April 8*

June *18, 1913.*

*Fraud,: Release of claims: Signature procured by false representar tions: Evidence.*

1. If a party to a written instrument was induced to sign it by relying on false and fraudulent representations, and was guilty of no negligence in failing to ascertain what the instrument in fact was, he is not bound by it; but to accomplish the impeachment of a formal written instrument on such grounds the proof must be clear and convincing beyond reasonable controversy. ■

*3352. The evidence in this case is *held*insufficient to sustain a finding by the jury that plaintiff’s signature to a release of his claims to compensation for certain personal injuries was procured by fraud and misrepresentation of defendant’s agents.

Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.

*Reversed.*

This is an action to recover damages' for personal injuries suffered by tbe plaintiff while in defendant’s employ as an air-bose coupler in making up a freight train.. On tbe evening of tbe day when tbe injury was received plaintiff was engaged as one of defendant’s air-bose couplers in making up a freight train in defendant’s railroad yards at Eond du Lac, Wisconsin. Tbe destination of this train was Chicago by direct route from Eond du Lac.

Under tbe rules of tbe company such trains were to be made up by a switching crew and tbe car and hose couplers. It appears that on tbe night in question, after tbe switching crew bad placed some freight cars for this Chicago train on a sidetrack and while they were engaged in switching other cars onto this track and plaintiff was making tbe air-bose coupling between two of tbe cars standing on this track, five or sis moving cars came in contact with tbe cars between which plaintiff was working and caused them to move against Kim and thus causing him to fall and to be caught under tbe cars and wheels and thereby inflicting tbe injuries be complains of. Much evidence was adduced upon tbe trial bearing on tbe question of tbe negligence of tbe switching crew in “kicking” cars onto tbe track and against tbe one at which plaintiff was making tbe air-bose coupling, and tbe question of plaintiff’s contributory negligence and bis assumption of tbe risk. Tbe view we take of tbe case does not make necessary an inquiry into these questions, and the evidence bearing thereon need not be stated. After tbe injury members of the switching crew with tbe assistance of one Collins, who was *336also engaged in coupling tbe cars and air-hose, removed tbe plaintiff from under tbe car and took bim to St. Agnes hospital. Dr. Wiley, tbe defendant’s physician and surgeon, attended and treated him.

A Mr. Harrington, defendant’s claim agent, called upon the plaintiff at tbe hospital on October 6th for tbe purpose of investigating tbe extent of bis injuries and ascertaining tbe .facts of the accident and making an adjustment of tbe claim which tbe plaintiff might assert regardless of defendant’s liability. He again called two or three days thereafter for the same purpose. On both of these occasions he had an interview with the plaintiff on this subject. He made his third call October 13th, when a release, which was an acknowledgment of satisfaction by the plaintiff for all claims to compensation for the injuries sustained, was executed and a draft of $117.75 was delivered to the plaintiff in settlement, being, the amount the defendant claims was agreed upon with the plaintiff. The plaintiff claims that he was led to believe that this amount was received as wages to cover the period of his sickness, and that he understood the writing signed by him to be a simple receipt for the money and that it was so represented to him by the agent. He also asserts that at the time of executing the release he was afflicted with pain to an extent that rendered him physically and mentally so weak that he had not the capacity to clearly understand the transactions. It is the defendant’s claim that the plaintiff fully understood the nature of the transaction and that he freely agreed to the making of the settlement, and that its representative explained and read to him the contents of the release before he signed it and that he acknowledged that he fully understood it and executed it without any coercion or deception being practiced upon him by defendant’s agents or servants, and that he acted freely and understandingly in making the settlement.

The court submitted the case to the jury upon a special *337verdict, and among other facts they found the following: (1) that the plaintiff signed the release in two places where his' signature appears; (2) that such signatures were procured by fraud and misrepresentation of defendant’s agents; (3) that the plaintiff was of sound mind on said 13th day of October, 1910. They also found that plaintiff was injured at the time and place alleged; that he did not assume the risk of the alleged danger; and that defendant’s employees were guilty of negligence and the plaintiff was guilty of contributory negligence, and that these negligences proximately contributed to plaintiff’s injury, and that defendant’s negligence was the greater.

This is an appeal from the judgment awarded in plaintiff’s favor.

For the appellant there was a brief by *W. A. Hayes,*attorney, and *John L.*Erdall, of counsel, and oral argument by *Mr. Hayes.*

*William N. Powers,*for the respondent.

The following opinion was filed April 29, 1913:

SiebecKeb, J.

It is contended that the finding of the jury that the plaintiff’s signature to the release in question was procured by the fraud or the misrepresentation of the defendant’s agent is not sustained by the evidence. It is declared in repeated adjudications of this court that if a party to a written instrument was induced to sign it by relying on false and fraudulent representations and he was guilty of no negligence in failing to ascertain what the instrument in fact was, he is not bound by it. *Dowagiac Mfg. Co. v. Schroeder,*108 Wis. 109, 84 N. W. 14. It is also well recognized as a principle that “To accomplish impeachment of a formal written instrument on such grounds the proof must be clear and convincing beyond reasonable controversy.” *Steffen v. Supreme Assembly,*130 Wis. 485, 110 N. W. 401.

Applying these principles to the case before us, can it be *338said that tbe evidence sustains tbe finding of tbe jury to tbe effect that plaintiff’s signature to tb© release in question was procured by tbe fraud of defendant’s agents? Plaintiff’s evidence as to bis mental condition at tbe time be signed tbe release is, in many respects, irreconcilable, and in its probative force is not clear nor convincing. Upon tbe trial be testified that when tbe defendant’s agent, Mr. Harrington, conferred witb bim and obtained the release, bis mind was in a state of stupor and confusion and that be bad no clear understanding of tbe nature of tbe transaction and understood that be was being paid two months’ wages. It appears, however, that as to other- details of what took place on this occasion bis recollection is reasonably clear and definite and wholly incompatible witb tbe claim that bis mental condition was such that be did not understand tbe nature of tbe transaction or comprehend tbe facts involved in tbe matter. Upon bis examination before trial bis recollection of tbe particulars concerning tbe amount of tbe draft delivered to bim was clear and distinct. He stated that be knew at tbe time tbe draft was delivered tbe amount thereof, and that be was then satisfied witb receiving this sum because be did not then believe that bis injuries were of a serious nature. He also testified that be did not consider this sum so received by bim was insufficient until be bad been at borne for some time and learned that bis injuries were of a more serious and permanent character than be believed them to be in tbe beginning. Plaintiff’s statements as to bis mental condition at tbe time of tbe transaction when be executed tbe release and received tbe draft in payment thereof are contradicted by Dr. Wiley, Sister Everesta, tbe attendant, Ming, an inmate named Pindar, and tbe defendant’s representatives, Harrington and Richardson. These witnesses observed tbe plaintiff at tbe time, and some of them before and after tbe execution of this release, and conversed witb bim in regard to tbe same, and they all testify *339that be displayed a normal and rational condition of mind and manifested an intelligent and comprehensive understanding of bis affairs; that be spoke of the transaction as a-settlement with the defendant, and referred to the receiving of the amount of the draft as a payment thereof. All the evidence given by the witnesses, except that of plaintiff’s cousin, Schooley, tends to show that at the time of these negotiations plaintiff was in full possession of his mental faculties; that he had the intelligence to comprehend them and the contents of the release; that he was capable of reading and understanding it. The evidence of defendant’s agents is that plaintiff read the release with Harrington, who prepared it and explained its contents to him, and that he freely assented to it.

These evidentiary facts and many of the accompanying circumstances, together with the plaintiff’s conduct in the matter, make it clear that he was not misled nor deceived into signing the release under the belief that it was a mere receipt for two months’ wages. The evidence falls far short of the legal requirements to impeach the formal written release. In probative force it is not of such weight and credibility as to constitute clear and convincing proof beyond reasonable controversy of the alleged fraud in procuring plaintiff’s signature to the release, and therefore as a matter of law does not sustain the finding of the jury on this question. *Richards v. Millard,*146 Wis. 552, 131 N., W. 365; *Denmark v. Milwaukee E. R. & L. Co.*142 Wis. 624, 126 N. W. 13; *Jackowski v. Ill. S. Co.*103 Wis. 448, 79 N. W. *757.*

*By the Court.-*— The judgment appealed from is reversed, and the cause remanded with directions to dismiss the complaint.

A motion for a rehearing was denied, with $25 costs, on June 18, 1913.