Swan v. Lincoln Terminal Co. ( 1918 )

Morrissey, C. J.

Appeal from a judgment of the district' court for Lancaster county in favor of plaintiff, in an action brought under chapter 35 (sections 3551-3696), Rev. St. 1913, as amended hy section 127, ch. 85, Laws 1917, known as “Employers’ Liability Act.”

Plaintiff, while employed as a janitress, sustained a fracture of the right wrist.' She immediately called upon the physician and surgeon of the surety company, which is defending in the name of the employer. The surgeon bandaged the arm, apparently without discovering the fracture, and without informing plaintiff of the true condition thereof. In due season plaintiff made application for, and was paid, compensation at the rate to which she was entitled under the statute — $6 a week.

Plaintiff was injured March 5, 1918. Compensation was paid to June '4, 1918, when she was paid $12, and executed a final release differing in form and phraseology from the receipts she had theretofore executed. This receipt was filed with, and approved by, the compensation commissioner. Defendant relies upon this release as a defense to this action. Plaintiff alleges that she was ignorant of its true import and meaning at the time of its execution, and that she was induced to sign the same because of fraud practiced upon her by the agent of the surety company.

Defendant asserts that the settlement was made in good faith for a valuable consideration and with full knowledge on the part of plaintiff as to the contents of the receipt. There is no special complaint made of the amount of recovery, provided plaintiff is entitled to recover at all. The main question presented is: "Will plaintiff be held to the terms of the receipt, or will the receipt be disregarded and she be permitted to recover notwithstanding its execution? Plaintiff suffered a severe and permanent injury. She was entitled to compensation for 150 weeks. There is a dispute between the parties. as to the date the release was executed. The paper is dated June 4. Defendant claims it was executed the day it bears date. Plaintiff says it was signed one week later, but we do not regard this as material. There never was any dispute as to the amount she should receive per week. On one or two occasions she was given a' check for one week’s compensation and signed a receipt prepared and presented by the surety company. At other times she was paid two weeks’ compensation and signed a receipt for the proper amount. The receipt relied upon is for $12. It differs somewhat in appearance from the other receipts she had signed, but,the amount is the same as the amount named in one or two of the other receipts. She testifies that the agent led her to believe that she was signing a receipt for two weeks’ compensation such as she had theretofore signed, while the agent testifies that he- allowed her full compensation up to date of receipt, and, by way of compromise or inducement to make a full settlement, paid her for one additional week. The agent is corroborated to some extent by two disinterested witnesses who were present when the receipt was signed. Their testimony, however, is of such character that it is easy to believe that, having no interest in the matter, their recollection of what took place may be at fault. As bearing upon the weight to be given plaintiff’s story, it may be mentioned that at tbe signing of this release sbe said to tbe agent tbat sbe was abont to leave tbe city to make a visit. Upon ber return two or three weeks later sbe called upon tbe agent of the surety company in the usual way and demanded compensation as sbe bad done before. Sbe was then informed tbat sbe bad made a complete settlement, and further payments were refused.

Considering tbe character of ber injury, and tbat sbe was entitled to collect a- total compensation of $900, while she. received only $84, is it probable tbat sbe understood the nature of tbe receipt at tbe time of its execution? She was a woman of limited education, 56 years of age, engaged in bard labor, and not likely to examine tbe papers presented for ber signature. This seems especially true when sbe bad theretofore signed receipts for the weekly indemnities paid, and tbe amount received on this occasion was for no greater amount than tbat received on other occasions. Tbe agent testified tbat be informed ber tbat sbe was making a final settlement. Assuming that be spoke tbe words, it is not probable sbe comprehended their meaning, or tbe purport of tbe paper. If sbe did not, tbe minds of tbe parties never met in the consummation of a valid contract. Perry v. Omaha Electric Light & Power Co., 99 Neb. 730.

Assuming tbat there was a valid consideration, tbe burden is on plaintiff to prove tbe fraud and deception alleged; but, in reaching a conclusion upon this issue, we must not only consider tbe statements made by tbe witnesses, but we must also consider tbe undisputed facts disclosed.

Upon a consideration of tbe whole record, we find tbat tbe judgment is fully supported, and it is

AFFIRMED.

LextoN and Rose, JJ., not sitting.