
    No. 559
    RED TOP CAB CO. v. WHITFIELD
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7388.
    Decided May 16, 1927
    1016. RELEASE — Not improper for court to submit question as to whether plaintiff signed release when it was denied by him — and where jury brings in general verdict in his favor.
    First Publication of this Opinion
    Attorneys — J. H. McNeal and Henry J. Reed for Company; Bernsteen & Bernsteen and M. S. Fishel for Whitfield; all of Cleveland.
   VICKERY, J.

The Red Top Cab Co. was sued by William Whitfield in the Cuyahoga Common Pleas to recover for certain injuries claimed to have been sustained when he was struck by a cab of the company. The Cab Company claimed that there had been a settlement and release of the claim and Whitfield was not entitled to recover. Judgment was rendered in favor of Whitfield, and error was prosecuted and the Court of Appeals held:—

1.We adhere to the doctrine that a release obtained under certain circumstances is a voidable contract and can be avoided by the plaintiff by making a proper tender back of the amount he received for said release and offering to place the other person in statu quo.

2. The petition did not set up the release but the answer did. It was flatly denied by Whitfield that there was such a release which was signed by a mark.

3. In submitting the interrogatory propounded by the company, “Did the plaintiff knowingly sign this release?”, the court did not violate any proprieties but put the question fairly to the jury.

4. It was submitted as were the other issues and the jury found generally _ for the plaintiff so that the verdict is unassailable.

Judgment affirmed.

(Sullivan, P. J. and Levine, J., Concur.)  