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November 16, 1953


The opinion of the court was delivered by: WEINFELD

Plaintiff sues under the Federal Employers' Liability Act *fn1" to recover damages for injuries sustained while in the defendant's employ as a tractor operator.

A principal issue is the effect and validity of a general release signed by the plaintiff on April 30, 1948, more than a year after the accident while still in the defendant's employ. The plaintiff claims that the release was intended to cover only wages lost by reason of the accident and due him up to the date of the release.

The accident occurred on April 7, 1947. Plaintiff was alighting from a tractor he was operating and stepped into a pool of oil, which had accumulated on the cement floor of the pier as a result of leakage from a defective tractor, causing him to slip and to be thrown to the ground. He sustained injuries to his left leg and knee. He was examined the next day by the railroad's resident doctor, who diagnosed his condition as a strain of the calf muscle of the left leg. Although plaintiff suffered pain, he continued at work the first few days after the accident; but toward the end of April, due to intensity of pain in his leg and knee, he was forced to remain at home. He returned to his employment in May and worked regularly until May 24th, when his left knee gave way, and again due to pain in his leg, was out of work until June 2nd. In the interval he was examined and treated by the defendant's doctor.

 On June 2nd, the doctor issued a slip indicating that plaintiff was again fit for duty and directed him to the company's claim agent. On this occasion the plaintiff received $ 30. Plaintiff states he was told this sum covered the five or six days wages he lost after the May 24th incident. He was required to sign a general release, which recited the payment of $ 30 and the discharge of the defendant from all 'liability for damages of every kind, nature of description that has arisen by reason of or may hereafter in any manner grow out of any and all personal injuries, whether known or unknown, permanent or otherwise.' The release also contains a final clause in the plaintiff's crude handwriting, as follows:

 'I understand that the sum of $ 30.00 is all I am to receive for this release and nothing else has been promised me. Kenny Humphrey.'

 Plaintiff's version of the circumstances attendant upon this transaction is that he was told by Wynne, the defendant's claim agent, that some wages were due him and papers were to be filled out; that Wynne had handwritten something on a piece of paper which plaintiff was asked to copy on to another paper, which he did (the final clause in the release); that he could neither read nor write. Plaintiff also testified that he had attended school in Batesburg, South Carolina, for one term; that he had never learned to read or write there, although he now can sign his name; that a well-disposed employer once taught him his ABC's. As a result, although he cannot read words, he can decipher each letter, 'letter by letter,' copy them, but does not understand the meaning of most written words. He testified that he could not understand nor read the release or handwritten clause which he wrote thereon; that when he copied the clause he did not know what he was writing. Plaintiff also testified that Wynne told him the $ 30 payment covered wages lost during the last days of May and, further, that the paper meant nothing else had been promised to him. The total time lost by plaintiff due to his injuries from April 7th, the date of the accident, to June 2nd, when he received the $ 30, was 20 days, excluding Sundays. His daily wage rate was approximately $ 7.75.

 Wynne contends that he told plaintiff the paper was a general release and the $ 30 payment was in settlement of his claim and in full discharge of all liability of the railroad; that it would be necessary in accordance with the defendant's custom for plaintiff to write the clause in his own handwriting; that plaintiff said he could read but was shaky in handwriting, whereupon he, Wynne, wrote out the clause on a separate piece of paper, explaining its meaning, and then had plaintiff copy it onto the release. Wynne admits he did not read the release itself to the plaintiff.

 For the next three or four months plaintiff worked with fair regularity until October 13th, when he was out for several weeks. During this period he was treated by the company doctor on the average of once a week and also received diathermy treatment at a hospital on the average of three times a week. Recurring attacks of sinovitus in the left knee with pain and swelling in the quadriceps tendon were noted. Absence from work increased. Humphrey was out 18 days in November and all of December, 1947; most of January, and all of February, March and April, 1948. He went to Wynne for funds. Notwithstanding the release of June, 1947, the defendant through Wynne and other claim agents on six different occasions from November 1947 to April 1948 advanced to the plaintiff various amounts totalling $ 175. In each instance plaintiff signed a receipt which authorized the deduction of the advance 'from any settlement which hereafter may be made with me, or shall be deducted from any judgment or award which may be entered in my favor and against the Erie Railroad Company by reason of or in connection with personal injuries sustained.'

 Apparently the injury did not respond to treatment, which from the date of the accident to February, 1948, appeared to consist of diathermy and medication. In February, 1948, the defendant's doctor decided that plaintiff had a torn cartilage in his left knee and recommended its removal. Plaintiff was sent by defendant to St. John's Hospital in Cleveland, where he was operated on early in March, 1948, and cartilage or portions thereof were removed from his left knee. He returned from Cleveland on March 18th and reported from time to time to the company doctor, who in early April found fluid on the knee, which was also swollen, but improvement was noted thereafter.

 On or about April 30, 1948, after he had been out of work six or seven months, the company doctor found him fit for duty May 1st and issued a slip to that effect to the claim office, which plaintiff presented to Wynne. The controversy centers about the release signed by the plaintiff on this occasion. Plaintiff claims that Wynne again advised him that papers were to be filled out and that the latter, together with another claim agent, Finck, computed his wages lost at $ 1,000, from which they deducted monies which plaintiff had received from the Railroad Retirement Board and the $ 175 previously advanced by the defendant, showing a balance of $ 451.50. Plaintiff testified that he refused to accept the sum because the wages lost during the seven-month period totalled more than $ 1,300. According to his story, he left, but returned the following day, after his wife had stressed their financial plight. He then agreed to accept the $ 451.50, but insists that it represented wages and was so told by Wynne; further, he displayed his knee, which was swollen, and was told if anything went wrong to return. Plaintiff testified that Wynne, as on the occasion of the signing of the release of June 2, 1947, prepared a handwritten statement which he copied onto another paper; that after he signed it Wynne read the clause to him and told him it meant nothing else had been promised; that he understood this to mean the money was all he was to receive for wages lost up to that date; that wages was the sole subject of their discussion; that nothing was said about settling his case or giving up any rights or claim he might have against the company. Plaintiff again swore that he could neither read nor understand the clause in Wynne's handwritten paper, although he was able to copy it onto the release.

 Wynne and Finck, the other claim agent, agree on a different story: that plaintiff presented a slip issued by defendant's doctor indicating he was ready to resume work and that he wanted to settle his case; that they arrived at a settlement of $ 1,000 and after computing the deductions for reimbursement, which left a balance of $ 451.50, the plaintiff said he wanted to think it over; that he returned the same day and said he would accept the amount offered, whereupon Wynne prepared the general release and also the 'usual clause' for the plaintiff to write in; that he advised plaintiff it would release any further claim against the Erie Railroad Company; that plaintiff said he understood it and then wrote the clause into the release and signed it, whereupon Wynne gave him the check for $ 451.50. Both deny that he was told he was getting only wages or that if things did not go right to return. Both concede that the terms of the release were not read to plaintiff. All that was read to plaintiff was the clause which he had written and copied and its meaning explained. Wynne further admits that he did not at any time advise plaintiff that he had any rights with respect to any claimed negligence of the defendant nor did either of the claim agents inform him that he had a right to assert a claim which, in the event he were successful, would include damages for pain and suffering, permanency of injuries and loss of wages. Wynne acknowledged he had no reason to dispute that plaintiff lost a total of 183 working days by reason of the injuries, which at his rate of pay meant a loss of wages of $ 1,327.40.

 Upon a review of the evidence, and based upon observation of the witnesses and their demeanor, I accept the plaintiff's version of the transactions and find that he has sustained his burden of proof. *fn2"

 Plaintiff is illiterate, of meager education and limited intelligence. He is unable to read or write, although capable of signing his name and copying script. Whether he had four terms schooling, as defendant contends, or one term, as plaintiff asserts, is quite irrelevant. The fact is that he lacked understanding and knowledge of the effect of the general release and its terms were not explained to him. He was not represented by counsel, nor did he have the benefit of independent advice when he signed the release. He relied solely upon the defendant's claim agents and physician. Plaintiff was led to believe by the actions and statements of the defendant's claim agents that the release of April 30, 1948, covered only his claim for wages lost up to that date.

 Plaintiff's claim that the release discharged only lost wages is supported by the very versions given by the defendant's two claim agents of events attendant upon its signing and the discussion thereat as to the amounts due the plaintiff and the deductions to be made from the $ 1,000 for repayment to the Railroad Retirement Board and the defendant for advances. It is emphasized by the prior dealings with plaintiff in connection with the first release, when he received $ 30, and the events subsequent thereto. In the instance of the first release, just as in the case of the second, the claim agent states the payment was in full settlement of plaintiff's claim and he informed Humphrey that it was a release of all claims and that he would receive no additional money. Yet it is significant, notwithstanding the broad terms of this first release, funds were advanced to the plaintiff on six subsequent occasions. Each receipt signed by plaintiff states that the advance 'shall be deducted from any settlement which hereafter may be made with me, or shall be deducted from ...

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