
    CASE 59 — ACTION BT M. B. BRAMBLE AGAINST THE CINCINNATI, FLEMINGSBURG & SOUTH EASTERN R. R. CO. FOR PERSONAL INJURIES
    March 4.
    Bramble v. Cin. F. L. & S. E. R. R. Co.
    Appeal from Fleming Oireuit Court.
    James P. Uatcbeson, Circuit Judge.
    From a directed judgment for defendant plaintiff appeals
    Reversed.
    1. Release — Fraud—Tender—Where a release given by an injured employe is assailed on the sole ground of fraud and misrepresentation, a tender of the amount received under the release is a condition precedent to contesting the release.
    2. Release — Setting Aside — Tender as Condition Precedent — In an action for injuries to an employe, the defendant alleged a release and want of tender of the consideration therefor. Plaintiff showed by the pleading and evidence that, though he claimed the release fraudulent, it was represented to him that the employer had insurance on its employes, 'and that a release was needed to obtain it, and that they did get insurance money and donated it to hjm. Held, that a tender was not a condition precedent to contesting the release, as the question of dona-V tion was involved, which, if the evidence sustained it, was for the jury.
    3. Release — By Injured Employe — Time of Making — Settlements made with injured employes immediately after the accidents are not looked on with favor by the' courts.
    4. Release — Contesting Release — Estoppel—That an injured employe, after executing a release to the employer, accepts money from him with knowledge that he claims that the release is in full settlement of all claims for damages, does not estop the employe as matter of law from contesting the release as fraudulent.
    
      JAMBS ANDREW SCOTT, JAMES H. POWER and O. R. BRIGHT for appellant.
    JOHN P.McCARTNEY and B. S. GRANNIS for appellee.
   Opinion of the Court by

Judge Carroll

Reversing.

This action was brought by appellant to recover damages for personal injuries sustained, caused by the falling of a trestle which percdpitated the train upon which he was riding to the ground some distance below.Upon the conclusion of the evidence for the appellant, the court directed the jury to return a verdict for appellee. As this ruling was evidently influenced by the evidence which tended to show that before the institution of this action the appellant had settled his claim for damages with the company, we- do not deem it necessary to examine any other question in the case. Indeed, counsel on both sides confine their argumnts to a discussion of the question whether or not appellant by the acceptance of the money paid him by the company was estopped to attempt to recover damages; it being conceded that he did not return or offer to return the money. In its answer the appellee set up that in consideration of the payment of $175 and the settlement of doctors’ bills and nurse hire, the appellant released the appellee from all claims or demands upon it, and it filed with the pleading a writing signed by the appellant, in which he accepted the money in full satisfaction of any claim he had or might have against the company. In a reply the appellant, while admitting that he signed the paper releasing the appellee company from liábility, averred: That he was unable to. read or write; that the paper was not read to him at the time he signed'it; that.when the paper was presented he was confined to his bed- and suffering severely from pains produced by his injuries; that appellee through its agents represented to him that it had accident insurance on its employes, and it desired the paper executed for the purpose of securing the insurance which it carried upon him as one of its employes ';' that after it received from the company the insurance it voluntarily donated the same to him; and, further, that the paper was procured by fraud..

The appellee company did have insurance upon its employes protecting it from damages for injuries sustained by them while in its employment, and did receive from the insurance company on account of the injuries sustained by appellant $175, the amount paid to him at this time; but there is sharp conflict in the testimony as to what representations or statements were made when the paper was signed. The appellant’s version is that he could not read or write, and the contents of the paper he signed were not read- to- him, that he signed it under the belief that it was a receipt to the insurance company for money coming to him from it on account of its insurance upon the employes of appellee, and he did not know that it was in full settlement of any claim he might have against the company for damages. On the other hand, the representative of the railroad company states that he fully explained to appellant the purport and contents of the paper, and appellant signed it with his mark-understanding that the money paid was in full setlement and discharge of any claim for damages appellant might have against the:company. He further said that on the day the alleged settlement was made the agent of the insurance company’in which appellee had its employes insured was in the city of F'lemingsburg for the purpose‘ of effecting a settlement with the company, and that the insurance company paid to the railroad company the $175 paid to the appellant. He testified that the settlement with Barnes was made on behalf of the railroad company and not the insurance company, and that the insurance-company had nothing to do with it, except that it paid to the railroad company the money. This setlement was made on the 22d day of May, 1907, about 10 days after appellant was injured. Some two months after this, appellant, being much in need of money and unable to work on account of his injuries, requested the company to give him money, and granting his request the company placed him on the pay roll, and the wages that he would have received if working were paid to him for some three months. At the time he requested the company to pay him more money, appellant, although insisting that no settlement had been made with him except to pay the money due him by the insurance company, was aware of the fact that the railroad company claimed that it had settled with him in full and that he had accepted the $175 in satisfaction and discharge of any claim he might have against it.

Upon this state of facts, it is the contention of theappellee company that, although the appellant may-have been deceived by the representations made to him when the $175 was paid, and although he may have accepted that sum and signed the release under the impression that it was money paid by the insurance company, and that he did not release any claim for damages he might have against it, yet that afterwards,, and with knowledge of the company’s contention in-regard to the settlement, he fully ratified the same by accepting other money from the company, and that this ratification estopped him from bringing this action, and, in addition thereto, he conld not maintain it without first refunding to the company the money received from it. On the other hand, it is the contention of appellant that it was a question for the jury to determine whether or not the $175 paid and the release executed by appellant was in satisfaction and discharge of any claim he might have against the company, or only a donation, and, further, that the .other money paid him was for time lost during his inability to labor, and its acceptance, although made with full knowledge of the company’s contention, was not a ratification of the first settlement. At this point it may be observed that, when appellant was put on the pay roll of the company, and the wages he would have earned if able to work paid to him for two or three months, there was no agreement or understanding between the parties as to these payments being in -settlement or satisfaction of any claim appellant had against the company. The company seems. r,o have recognized the financial difficulties under which appellant labored and was willing to aid him by giving him the wages that he could have earned if he had been able to work. So that the questions in the case are: (1) Was it necessary that appellant should have tendered to the company the $175 received by him before he could maintain this action, and (2) did he ratify the settlement made by demanding and receiving more money from the company after he had knowledge of the fact that it claimed the $175 was paid in full settlement and satisfaction of his demands) against the ■.company?

If the only ground upon which appellant sought to be relieved from tbe effect of the -writing executed by him was that it was procured' by fraud and misrep>resentations, then before he could maintain an action for damages he must have paid or offered to pay to. the company the amount received. On the other hand,, if appellant’s view of the matter is true, and the-receipt was obtained by fraud, and the money given to. him as a donation, a tender was not necessary. This, .distinction is clearly recognized in the cases decided, '.by this court. Thus in L. & N. R R. Co. v. McElrey, 100 Ky. 153, 37 S. W. 844, MlcElroy, who vas injured while in the employ of the company, brought an action, to recover damages. The company in its answer-pleaded that shortly after the accident it paid to McElroy $700 in full settlement of all claims and demands, on account of his injuries and filed with its pleading a, receipt signed by him. This receipt is attempted to-avoid upon the sole ground that it was obtained by-fraud and misrepresentation at a time when he was. unable to fully understand the purport of the paper.. The only issue in the case concerning the settlement was whether or not it was obtained by fraud and misrepresentation. There was no pleading or evidence-that the money was paid for anything except to compromise and settle his claim for personal injuries, and; the court held that he should have paid or offered to: pay the money received in the settlement before he-could maintain his action, saying: “The general ruléis that, when one has received money or property under a contract that is voidable for fraud or other-reason, he must repay the money or .tender the property. before he is entitled to have tire contract; rescinded.” The principle announced in- this case was, followed in' Home Benevolent Society v. Muehl, 109 Ky. 479, 59 S. W. 520; Shields v. Lewis, 49 S. W. 803, 20 Ky. Law Rep. 1601; L. & N. R. R. Co. v. Helm, 121 Ky. 645, 89 S. W. 709; City of Louisville v. Lou. Ry., 68 S. W. 840, 24 Ky. Law Rep. 538; I. C. R. Co. v. Vaughn, 111 S. W. 707, 33 Ky. Law Rep. 906. As distinguished from this line of cases we find McGill v. L. & N. R. R. Co., 114 Ky. 358, 70 S. W. 1048. There, in avoidance of a receipt executed by him, setting out that he received $210.25 in full compromise and settlement of all claims and demands he might have against the company on account of personal injuries sustained, McGill pleaded that the receipt was obtained by fraud and misrepresentation, and that the money was not paid or received in settlement of his claim for damages; but for time lost and a medical bill. Although the money was not tendered, the court held that he was entitled to have submitted to a jury the question whether or not the money was paid in settlement of his claim for damages or for lost time and the medical account. This case was followed in Continental Tobacco Co. v. Knoop, 71 S. W. 3, 24 Ky. Law Rep. 1268; I. C. R. R. Co. v. Belt, 93 S. W. 601, 29 Ky. Law Rep. 421; Ingram v. Covington, F & A. R. R. Co., 89 S. W. 541, 28 Ky. Law Rep. 508; I. C. R. R. Co. v. Edmonds, 111 S. W. 331, 33 Ky. Law Rep. 993.

It will thus be seen that it is only when the receipt is assailed upon the sole ground of fraud' and misrepresentation is it necessary that the money received under the settlement should be tendered. If the person receiving the money asserts in an appropriate pleading that it was received by him for any other purpose than in settlement of his claim for damages, and that the receipt given was obtained by fraud or misrepresentation, a tender is not necessary, and if the plea is supported by sufficient evidence the question should be submitted to a jury. These day after the accident settlements, made by corporation agents with injured employes, are not looked upon with favor by the courts. The transaction on its face has too often the appearance of overreaching' and undue advantage. The parties are not on an equality. They are not dealing at arm’s length. An injured employe, confined to his bed, suffering with pain, unacquainted with the full extent of his injuries, and not knowing how long he will be incapacitated to labor, and frequently in urgent need of mon'ey to defray the necessary current expenses of himself and family, is not in a condition to cope intelligently with an adroit, experienced, and plausible claim agent. But the point is strongly pressed in argument that appellant ratified the settlement the company claims it made with him by demanding and receiving from it the subsequent payments with full knowledge on his part that the company insisted that he received the $175 fully understanding that it was paid in settlement of any claim for damages he might have and not on any other account, and the argument is made that, having thus ratified the settlement, appellant will not now be heard to say it was fraudulent, and is estopped by his conduct from attempting to avoid it. We do not think it can be held as a matter of law that appellant by accepting the wages estopped himself from disputing the validity of the original writing executed by him. The mere fact that he knew what the company’s claim was at the time he permitted himself to be put on the pay rolls did not amount to a ratification by him of the settlement alleged to have been made; but it was competent to show these subsequent payments as evidence bearing upon the question of the execution of the receipt. The real issue in the case turns upon the transaction that took place when the receipt was executed.

The judgment is reversed, with directions for a new trial in conformity with this opinion.  