See v. Carbon Block Coal Co.

Dadd, J.

The plaintiff was employed in the defendant’s mine, and at the time of being injured was riding on the front car, at the right-hand corner, driving a vicious mule named Dynamite. For about twenty-five feet the entry was low, and in passing through a rock, extending over the rail eight or ten inches caught plaintiff on the shoulder, taking him over on his back, and he was rolled along the side of the ear and injured. The rulings on the admissibility of evidence are not open to fair criticism," and the evidence, though close on the question of contributory negligence, was such as to carry the issues to the jury. Nothing can be gained from a review of the evidence, and in view of recent decisions covering the questions argued it seems necessary to discuss only one of the errors assigned.

1. Personal injury: settlement: mental capacity: instruction. Shortly after the injury a stipulation of settlement was signed by plaintiff, in pursuance of which defendant paid $50 and, subsequently, the attending physician’s charges. In the reply this was alleged to have been procured by fraud, and when plaintiff was mentally incapable of entering into a contract. The court instructed that the evidence failed to show that fraud was practiced, but submitted to the jury, in the sixth instruction, whether plaintiff “was in such a state of mind that he had no reasonable perception or understanding of,the nature and terms of said contract of settlement,” and instructed if he was in such state of mind, and had not *415 ratified the settlement as by accepting the services of the physician after he knew of the terms of settlement and of payment of the physician thereunder, the release interposed no obstacle to recovery; but if not in such state of mind, or he had accepted the services of a physician with such knowledge, the defendant would be entitled to a .verdict. In the seventh instruction the jury were told that plaintiff was not bound to return, or offer to return, to defendant any money or benefit received under said contract of settlement at the time it was entered into, or while of unsound mind, if he was, or so received without knowledge of the terms of said contract, if he was in ignorance thereof before bringing suit; and the acceptance or retention of any money or benefit so received could not amount to a ratification of said contract of settlement, but the acceptance by plaintiff of any benefits under said settlement, after he became mentally capable of a reasonable perception or understanding of the terms of said settlement, with full knowledge of the terms thereof, would amount to a ratification of said settlement and preclude a recovery by plaintiff in this action.

The plaintiff testified that he had no knowledge of the settlement until after the suit; and if the jury found otherwise this instruction was to the effect that if he accepted, by retaining, the money paid after he regained the possession of his faculties this would amount to ratification of the settlement and defeat recovery. This was not as clearly stated as it might have been, but sufficiently so in the absence of a request; for if he retained it, knowing for what received, before bringing suit he accepted benefits, and this, under the instruction, must have defeated recovery.

Moreover, in view of the finding that plaintiff was mentally incapable,, and did not ratify the settlement by accepting the physician’s services, there was little room for saying, notwithstanding these conclusions, that he knew of the settlement prior to bringing suit; for his testimony of not knowing was contradicted only by the evidence bearing on these *416 issues. If he did not then know, it was unnecessary in any writ to return or tender the consideration received. Chicago, R. I. & P. Ry. Co. v. Doyle, 18 Kan. 58 .

2. Same: fraud: rescission: condition precedent. The result is that if the law is as argued by appellant there was no error. It has long been settled in this state that where a release is procured by fraud the consideration need not be returned or tendered back as a condition precedent to the maintenance of an action for damages. O’Brien v. Railway, 89 Iowa, 644 ; Kelly v. Bailway, 138 Iowa, 273 .

Does the same rule prevail where the release is alleged to have been procured from one mentally incapable ? Of course, if such condition were known to the adverse party procuring it, this would constitute á fraud, and no tender would be necessary. St. Louis, etc., R. Co. v. Sandidge, 81 Ark. 264 ( 99 S. W. 68 ); St. Louis, etc., R. Co. v. Brown, 73 Ark 42 ( 83 S. W. 332 , 3 Ann. Cas. 573).

But if the mental incapacity is unknown to the adverse party, and the release is fairly procured but for mental incapacity, the authorities seem uniformly to hold that the consideration, if it has reached the complaining party after the restoration of his faculties, before suit has been commenced, must be returned or tendered back as a condition precedent to the maintenance of the action. Kelley v. Railway, 154 Ala. 573 ( 45 South. 906 ); Pawnee Coal Co. v. Royce, 184 Ill. 402 ( 56 N. E. 621 ); Drohan v. Railway, 162 Mass. 435 ( 38 N. E. 1116 ); Morris v. Railway, 67 Minn. 74 ( 69 N. W. 628 ); Gibson v. Railway, 164 Pa. 142 ( 30 Atl. 308 , 44 Am. St. Rep. 587 ). This is on the theory that restoration of the property received from the other party, acting in good faith, is essential to rescission, and that the retention of the consideration under these circumstances, with full knowledge of the facts, is a ratification of the contract. As pointed out, the court’s instructions were in harmony with this view of the law, and the judgment is Affirmed,

*417 Supplemental Opinion.

Per Curium.

3. Appeal: failure to argue: waiver. Counsel for appellant in a petition for rehearing, scolds the court for not deciding whether plaintiff, upon being advised of the alleged settlement by the filing of the answer pleading the same, was required, as a condition precedent to the further maintenance of the action, to pay or tender back the amount received from defendant in pursuance of the settlement. Our only justification is, and it has the unanimous approval of the courts, that the question was neither presented nor argued by counsel in their briefs.

The petition for rehearing is Overruled.