ARK.] UNION COMP. & WHSE. CO . v. SHAW. 249 ' UNION COMPRESS & WAREHOUSE COMPANY v. SHAW. 4-2823 • Opinion delivered January 23', 1933. 1. RELEASE—FAILURE To READ.—One cannot avoid the effect of a contract of release by proof that he did not read it when he signed it, or know what it contained. 2. RELEASE—BURDEN -OF PROOF.—The burden was on an illiterate plaintiff to show that a release was executed or procured in such a manner as would release him from its binding effect. RELEASE—INSTRUCTION. — An instruction to find for the plaintiff in a personal injury suit if he signed a release without knowing • what he was signing held erroneous. 4. RELEASE—AvOIDANCE.—Although an illiterate plaintiff in a Personal injury case may not avoid a release executed by him on account of not having, it read to him, he may avoid it if he was induced to sign the release by deception practiced by defendant's agent in procuring the release, whether such deception was intentionally fraudulent or not. Appeal from Hempstead Circuit Court; Dexter Bush, Judge; reversed. Gentry , ce Gentry, for appellant. John P. Vesey, for appellee. KIRBY, J. This appeal cOmes from a judgment for damages for personal injuries to appellee, an employee of appellant company. Appellee was injured on March 4, 1931, while working for the appellant company in its warehouse at Hope, Arkansas, by a bale , of cotton falling on his foot and leg, breaking it. It was alleged the injury was caused by the negligence of a fellow employee while appellee was trucking cotton from the warehouse into a freight car to be loaded therein. It was the duty of the employee in the car to help unload the bale of cotton from the truck, steady and set it up on end in the car. When he unloaded the bale and started back with the truck, the, other employee failed to steady or hold it up and negligently allowed it to fall On his -leg, breaking it, before he could get in the clear with the truck. The appellant concedes that the evidence-is sufficient to justify submitting the issue to the jury, which found
.25c) UNION COi[P. & .WHSE. 'V. SHAW. 118.7 a verdict for damages against the company. They relied on the release executed on the 9th day of April, 1931, by the appellee in consideration of the payment by the company of the hospital bill, the doctor's .bill incurred by the appellee . on account . of the injury and the pay-Merit tn . him of 'the Sum of $20; it . being 'contended by appellant that the release is binding . upon the appellee, and no showing was made at the trial sufficient to avoid it, and' that the court should have given appellant's- peremptory instruction, and that . the &nut erred in 'giving plaintiff's recineSted instruction . No, 1,..and says in it's brief : "On these two . prepositions .alone ve base our right to a reversal of the judgment.of the trial court." ApPellee . admitted that he execirted the release, but said that he could . neither read nor..write (except he cOuld write his name), and that the release was not read or explained to him; that he did . not :understand , it .was final anyway, and that , when he got back to his home and his wife' read 'the check and explained 'the . effect of it, he refused to carry out the agreement' and: had never cashed the check. On the" day the release was executed Mr. Kyler, the superintendent of the compress.company, Went down in his dar taking the . inSurance -adjuster' with him.;. -to the home of aPpellee, where'he found him Sitting on the edge of the bed. He was still using a . cruteh, and his foot-was swollen and . bound up: . They toOk him out on a stretcher, put him in the Car and -Carried him to the compress offices where in . the presence of Mr: , Kyler; the manager,' and Mr: 'Franklin, the q inmediate superintendent . of appellee ih his work; the release was- executed. It waS -not read over to'Uppellee before he signed it; but the witnesses stated that it . was explained to him. The adjuster; Mr. McIntosh, asked him hew the injury occurred; and'appellee explained it to him, and was' adviSed by Mantosh, after he had made bis-statement,."that he. did not think there was any liabilitY on the part Of the 'compress." McIntosh asked . him how much money the compress company had paid him and how much they had expended: "'that :after McIntosh a.dvised him that he'did hot believe there was any liability, he told Shaw
Aim.] Colinj`. kWiasE: Col 4): SilAIV: 25f that they wanted to do what Was right and said that they would pay the doctor bill; the hospital' bill and giVe . hind $15 if he wonld sign a release; the appellee stated that this sum looked mighty' Sinall, and finally Mr. McIntosh offered him $ 9 0 and to pay all the bills if he wciuld' agree' to release the conipress, and "the negro said that'this sund looked Mighty little but, if that was all they : would Pay, he guessed it be : all the would '-McIntosh then madenutthe release, and it was dxplained to appel-lee, and, when"it Was filially explained'to him, McIntosh: gave him his fountain pen and told him- where to.'sigli; then Mr..Franklin and'Mr.: McIntoSh signed aS witn4ses to his signature; and-McIntoSh took Shaw -hdrne in his car: McIntosh. gave 'a draft' for $20 .. after he had' signed the release. Mr. KYle? i stated : further that the release was not read to Shaw, but - Nra",s fhlly explained to • him; that he did' not know Whether or-not it waS told him that the doctor 'said he -Wduld be'well 111 8' . or 10 days, that he might: have said'as much, but he -did'idot remember it. Said neither the check nor : the release was . read to appellee.: The instrUction No. 1, , objeCted tO, reads as follows "If you find from a prepondeance of the evidence in this case that the i plaintiff was . injured while . in the employ of the ,defendant, -and Nvhile in the exercise, of_ due, eare , for his own safety,.and that said injury was the-direct result of tbe neglizence of another emplo y ee. of the defendant, and if you alsO find from a preponderance of the evidence that ' the plaintiff, at- the tinle he siomed the release introduced,in evidence didrnot,knaw whathe was signing, then and in that event you . shall find for the plaintiff." This . court has concluded, that the trial court erred . in giving this .instruction. Appellee' admitted the eXecittion of the release, but, said he could- neither read nor . write.: Said it-Was nOt read to him-or exPlained and the 'burden 'of ' proof 'was upon him tO show, of cours6,'that it was 'executed or procured in such a 'manner as: would' release him frOrh: its binding effect. •:,!
252 UNION COMP. & WHSE. CO .- V. SHAW. -[187 The undisputed testimony shows that neither_ the release nor the check was read to appellee before he signed it, and that he did not know what was written in the check until he got home -and his wife read it to him, and that he then refused to cash the check and never had done so. Appellee testified that he did, not know. what he had signed, but he did recognize the signature on the release exhibited in evidence as having been made: by him. Said the reason he signed the release was that. his leg pained him so he was sick and wanted to get back home and get to bed. It has been held that one • cannot nvoid the effect of a 'contract of release by stating that he. did- not read it when he signed it, or know what it contained. Texas Co. v. Williams, 178 Ark: 1110, 13 S. W. (2d) 309. • • In 23 R. C. L., par. 17, page 387, it is said : "But one who has signed a written release, without being induced thereto through any fraud or deception, cannot avoid its effect on the ground that at the time he signed the paper he did not yead it or know its contents." Although it is true that appellee could not read, it was shown that the effect of the . release was explained to him, but, although he testified to no single act of the representatives of the company who weye present when. the release was procured that would avoid it, it was also shown that,.Upon his explanation of the 6ccu . rrence caus ing the: injury, the claim 'agent told him that . there was no liability upon the part of the compress company 'for the injury, and tbat they would give him so much for a. release under the circumstances, desiring to treat: him fairly. This. statement was not disagreed to by eitber of the representatives of the Compress company, and evidently induced the appellee "to execute the release which he would not otherwise have, done; and under the circumstances, although he is not allowed to avoid the effect of the release on account of not having it read to him, if he was induced to Sign it by the deception, whether it was intentionally fraudulent or not, practiced by the claim agent in making the statement that there was no liability on the part of the company for payrnent of
damages-for, the injury .snffered by him, ,such would not be the case.. No obje,ction was made to this statement by his superiors—bossesr--and he executed the release under these conditions and repudiated the contract 'immediate-. ly. . upon • being informed by . his wife of the . contents .0; the check. - The 'instruction No. 1 was not an accuratc .statement. of the law under thd circumstances, and the majority has determined that it•Was•eridneous; nnd that the cause must 'be reVdrsed'.on • account of its prejudicial effect. For this error-the . judgment is reversed, and the -cause retn -anded . for" 4. new
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.