#### Kenese, Appellant, vs. Cudahy Bros. Company, Respondent.

*April 8*

April *30, 1918.*

*Master and servant: Injury to employee: Release: Procurement through -fraud: Degree of proof required: Trial: Changing finding in special verdict.*

1. In an action for personal injuries to an employee, where plaintiff claimed that a release executed by him had been procured by fraud, the court properly instructed the jury that “to impeach a formal written instrument on the ground of fraud or mistake the proof must be clear and convincing beyond reasonable controversy.”

2. In this case, the unsupported testimony of the plaintiff in denial of a settlement, that the release was not translated or explained to him, and that he believed and understood that the writing he signed was only a receipt for $50 for wages, being refuted by several witnesses whose credibility is corroborated by the facts and circumstances, the trial court properly changed a finding , by the jury that the release was procured by fraud.

Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. TueNee, Circuit Judge.

*Affirmed.*

Tbis action was brought by tbe plaintiff to recover damages for personal injuries alleged to bave been suffered by him *379while in the defendant’s employ. The negligence charged was failure to provide a safe place in which to work, safe employment, safe equipment and appliances, failure to warn the plaintiff of the danger incident to his employment, and, more specifically, negligence in putting plaintiff to work removing barrels of meat in which nails protruded from the top and side where plaintiff was required to take hold with his hands. Plaintiff claims that on one of these nails so protruding his right hand was injured, from which blood poison set in, causing severe and permanent injury to his arm and hand. Defendant’s answer.denies the negligence and sets up as a defense to plaintiff’s cause of action a release signed by the plaintiff.

The case was tried before the court and a' jury. Defendant’s requests for a nonsuit and a directed verdict were denied. By a special verdict the jury found that the release was procured by fraud; that the defendant was guilty of negligence proximately causing the plaintiff’s injury; and damages were awarded to the plaintiff in the sum of $2,870. The plaintiff’s motion for judgment in conformity with the verdict was denied. The defendant’s motion to change various answers of the special yerdict was denied excepting as to the answer to question No. 1 of the special verdict, which found that defendant secured the release through fraud. The court entered an order changing the answer to question No. 1 from “Yes” to “No” and directed judgment to be entered upon the verdict so changed, .dismissing plaintiff’s complaint with costs. Erom this judgment appeal is taken.

The cause was submitted for the appellant on the brief of *William, L. Tibbs*and *Willis D. Lang,*attorneys, and *Daniel W. BxAlivan,*of counsel, all of Milwaukee, and for the respondent on that of *L. A. Dahlman*of Milwaukee.

SiebeoKER, J.

It is contended that the trial court erred in setting aside the jury’s finding to the effect that the re*380lease obtained, by defendant in settlement of claims and demands-for plaintiff’s injury was procured from plaintiff by fraud, and that such error resulted from an improper application by the court of the following rule to the case: “That to impeach a formal written instrument on the ground of fraud or mistake the proof must be clear and convincing beyond reasonable controversy.” The trial court so instructed the jury and manifestly applied this rule to the case in setting aside the jury’s answer to the'first question of the special verdict. It is argued that’ this rule has not been applied to cases like the instant one and is properly applicable only in equity cases, or as a defense in an action at law where it is first proven or admitted that the parties intended to make an instrument of the nature or kind in question. There is no question that this rule has been applied in equity cases as shown by the numerous authorities in this court, some of which counsel cites to the court’s attention. The applicability of the rule to the instant case is also shown in cases that have received consideration in this court, of which the following may be mentioned: In *Bowe v. Gage,*127 Wis. 245, 106 N. W. 1074, the plaintiff, a real-estate broker, brought action to recover a commission for procuring a purchaser of defendant’s farm; defendant pleaded settlement with plaintiff and that he had plaintiff’s receipt acknowledging full payment of the claim. It was urged that the trial court erred in adopting and communicating to the jury the rule of law “as to the quantum and character of evidence necessary to warrant a finding of fraud, inducing the settlement and receipt. The charge merely cautioned the jury that they were to find such fraud only if they were ‘satisfied by a preponderance of the evidence’ that it occurred; and this, too, in face of a request for further instruction that, notwithstanding a mere preponderance of evidence, the finding of fraud should not be made unless the jury were satisfied by evidence that is clear, satisfactory, and convincing. It is well stated *381that certain facts, including fraud, mistake, and tbe like, are not to be found as readily as tbe affirmative of ordinary issues not involving turpitude, or tbe repudiation of deliberate and formal writings, and while tbe doctrine earlier declared, that tbe evidence must establish such facts beyond reasonable doubt, has been abandoned, it is held that only upon evidence that is clear and satisfactory can an affirmative finding of fraud properly be made. A court, in submitting the issue of fraud to a jury, does not perform its duty without instruction marking this distinction” (citing numerous cases ip this court). This rule was re-affirmed in tbe following cases dealing with releases pertaining to transactions of tbe nature and kind involved here: *Steffen v. Supreme Assembly of Defenders,*130 Wis. 485, 110 N. W. 401; *Demark v. Milwaukee E. R. & L. Co.*142 Wis. 624, 126 N. W. 13; *Bessey v. M., St. P. & S. S. M. R. Co.*154 Wis. 334, 141 N. W. 244. Tbe rule followed by tbe trial court is well established and we discover no good reason for bolding it inapplicable in tbe instant case.

Can it be said that tbe evidence in tbe case is clear, satisfactory, and convincing on tbe question of fraud which induced tbe plaintiff to sign tbe release ? Tbe jury found as fact that tbe release was secured by fraud, but tbe trial court reversed this finding upon tbe ground that tbe evidence did not sustain tbe finding of tbe jury. There is no dispute but that tbe plaintiff signed tbe release, but be avers that be signed it under tbe belief that be was signing a receipt for $50 which defendant offered to pay him as wages. Plaintiff is unable to understand, speak, read, or write English; be denies that be and Daly, defendant’s manager, bad any negotiation of settlement before tbe paper was signed; be states that tbe contents of tbe paper were not translated to him by Dr. Junge, bis attending physician at tbe hospital where tbe paper was signed; that it was pot explained to him; that be did not ask tbe doctor to translate it; that be did not know *382it was a release, and tbat be did not know tbat be bad a claim against tbe defendant. Plaintiff also states tbat tbe doctor told bim tbat Daly paid tbe $50 when tbe paper was signed “for tbe time I was sick,” and tbat be would receive only $5 a week while be was in tbe hospital. Dr. Junge testified in detail to tbe negotiations of settlement, tbe payment of tbe $50, tbe offer of a settlement by Daly on tbe day be first called at tbe hospital on August 6tb and tbe second day thereafter when tbe release was signed, tbe payment of tbe $50 to plaintiff, and tbe agreement of Daly to pay tbe hospital and doctor bills.

It appears tbat plaintiff ha,d been in tbe hospital continuously from July 23 d, tbat be bad suffered seriously from septicemia in bis band and arm resulting from tbe injury to bis band caused by tbe nail wound; tbat bis band bad been operated on and otherwise treated; tbat bis condition on August 6th and 8th bad improved so tbat be was practically free from • fever and severe pain, tbat be was able to sit up and be about bis room a part of tbe time and was in bis normal mental state. Tbe evidence of Dr. Junge and Mr. Daly is to tbe effect tbat Mr. Daly, by telephone appointment with Dr. Junge, called, at tbe hospital on August 6th to see plaintiff; tbat tbe doctor acted as interpreter for tbe plaintiff and Daly; tbat Daly proposed as a settlement for tbe alleged injury to plaintiff from tbe accident to pay tbe hospital expenses, tbe doctor bills, and to pay tbe plaintiff $50; tbat plaintiff, after having tbe offer fully explained to him by tbe doctor, accepted tbe offer; tbat Mr. Daly on August 8th again came to tbe hospital with tbe written release introduced in evidence and brought with bim an amount in cash over and above tbe sums needed to pay plaintiff tbe $50, tbe doctor bills, and tbe hospital bills; tbat tbe doctor took tbe release, went to tbe plaintiff’s room alone, and there translated it to tbe plaintiff and explained to bim tbat if be signed tbe paper and took tbe $50 it would be a full settlement of all his claims against tbe defendant for bis injury; tbat plaintiff thereupon hesitated *383to sign the same and stated that he ought to be paid something additional for the time he might remain disabled; that Mr. Daly was then called, came to plaintiff’s bedside, and was informed of the plaintiff’s request for additional compensation. Daly offered him an additional $5 a week until he left the hospital, to which the plaintiff assented and signed the release. The doctor testified that he informed the plaintiff that he was unable to fix a definite period within which he would be recovered. Daly testified that the doctor read the release in parts to the plaintiff in his presence and then spoke in German to plaintiff as though he translated it. Anna Hein testified that she was called to plaintiff’s room on the occasion when the release was signed; that she speaks and understands English and German; that the doctor explained the release to the plaintiff in her presence and hearing; that the plaintiff seemed to understand it; that he signed it in her presence, and that he assented expressly to her signing it. It is unprofitable to state further in detail the evidence of these witnesses as to what occurred and what was said and done on the occasions of the 6th and 8th of August respecting this settlement and the execution of the release. The statements of the plaintiff in denial of a settlement and that the release was not translated or explained to him by Dr. Junge and that he believed and understood that the writing he signed was only a receipt for $50 for wages, are refuted by these several witnesses, whose credibility is corroborated by the facts and circumstances in the case and stand denied only by the hare assertion of the plaintiff. The record fails to show the quantum and character of evidence which is required in order to find that the fraud charged has been established by clear, satisfactory, and convincing evidence. It follows'that the trial court properly changed the. jury’s answer to the first question of the special verdict and that the judgment must stand.

*By the Qourt.*— The judgment appealed from is affirmed.