maining between the rails after the tongs | which might produce fever, and that fever had been fixed to the rail, and while the makes the subject flighty, and more or less track was being lifted? Answer: No." I delirious. There is no claim that the wound "(16) Were the tongs reasonably safe for on the head particularly affected the brain. the work being done at the time of plaintiff's The following is a brief résumé of the injury? Answer: No." testimony on which the court concluded that the plaintiff was competent to make the contract of settlement, notwithstanding his testimony and the finding of the jury that he was incompetent.

The court changed the answers to all of these questions, excepting the first and twelfth, as not supported by the evidence, and awarded judgment for the defendant, from which judgment this appeal is taken. The other questions submitted to the jury are not material to a decision of the matters involved on this appeal.

Perhaps the most important item of evidence bearing upon plaintiff's condition was the clinical report kept by Sister Galla, at St. Joseph's Hospital at Chippewa Falls, W. K. Parkinson, for appellant. Barry & where the plaintiff was being treated. This Barry (A. W. Sanborn, of counsel), for re-record was begun on August 1st, when plainspondent.

If

tiff was admitted, and was discontinued after September 11th, for the reason, as stated, that the condition of plaintiff was such that BARNES, J. (after stating the facts as above). The court set aside the answers of there was no further need of continuing the the jury to the second, seventh, ninth, elev-record. This record showed the temperaenth, thirteenth, and sixteenth findings of ture and pulse of the plaintiff from day to the jury, and in substance held, as a matter day, which were generally taken twice a of law: (1) That the plaintiff was competent to make the settlement and to sign the release which he executed; (2) that defendant was not negligent; and (3) that the plaintiff was guilty of contributory negligence. the trial court was right as to any of these questions, the judgment must be affirmed. Plaintiff's left leg was badly fractured and bruised, and his head was cut and his skull fractured over the right eye. He suffered much pain after the accident. It is conceded that from August 17th to August 25th there was an abscess forming in the injured leg, and that during this time the plaintiff was delirious and restless at times, particularly at night. The leg was lanced and the pus removed on August 25th. The injury occurred on July 31st. The alleged settlement was made September 19th, 50 days thereafter, and 25 days after the lancing took place. Plaintiff left the hospital on October 10th, 21 days after he signed the release.

day; the medicine, nourishment, and stimulants given to him, and remarks showing when his wounds were dressed; whether the patient was quiet or restless; how he slept, and when he complained of pain, as well as some other information of a like character. The record was kept in part at least for the information of the doctor, so that he might know the condition of the patient at different hours of the day, and it was discontinued by his permission on September 12th, because there was no further necessity for keeping it. This record did not show a high temperature or a very rapid pulse until about August 19th. On that day, the temperature was 104.6 and the pulse 100, and on the following day the patient's temperature was 104 and his pulse 110. The temperature was reduced to 98 and the pulse to 80 on August 26th. From September 2d to September 10th, inclusive, the temperature varied from 98 to 99.4 degrees, and the pulse from 72 to 80 beats per minute. The record showed Plaintiff sought to avoid the effect of the that the patient was given morphine on Aurelease by testifying that he was delirious gust 5th, August 20th, and August 25th, and or insane or unconscious at the time he sign- that he was given whisky by the doctor's ored it, and he denied that the signature there- ders from time to time up to September 5th. to was his. He said he had no recollection The record further showed that the patient of seeing or discussing the terms of settle- was discharged from the hospital as cured ment with defendant's agent, and had no on October 10th. This record makes no recollection of having signed any paper. He mention of any abscess being formed about accounts for this condition of mind by say- September 19th, when the release was signing that there was another abscess forming in ed. If the plaintiff was in the condition in the injured leg at the time the alleged set- which he testified he was, the necessity for tlement was made, from which he was suf- keeping a clinical record about September fering great pain, and which was thereafter 19th was certainly as great as it was at any lanced, and that he was being doped with time during his confinement at the hospital, whisky or morphine at the time, so that he and it is very significant that that record was in a comatose state. The physician who was discontinued nine days before, with the attended plaintiff was not called as a wit- doctor's permission, and that it was not ness. Dr. Parker, testifying as an expert, resumed. The nurse stated that the record said that the formative period of an ab- was discontinued because there was not scess was painful; that during the forma- much to do with the patient any more; that

nothing in particular to keep track of there- | settlement, and said there had been a couple after.

of lawyers there to see him. Witness further testified that he did not represent to the plaintiff that the defendant was not liable for the injury.

B. W. Davis testified that he was formerly the secretary of the defendant company, and that he met the plaintiff after the settlement had been made with him; that plaintiff called at his office and thanked him for what the company had done in settling with him. Witness said: "After thanking me, he asked for some firewood, and I told him the settlement did not call for any wood. He said he was to have wood." The witness further stated that he called Mr. Nutter into the

The sister further testified that between the 25th of August and the 10th of October the patient was improving, and his mind was all right. This witness further testified that she was not present when the settlement was made, but that the plaintiff told her, on September 19th, when he went back to his cot, that "he was very glad this morning that he had settled with the company." This question was then asked her, "Did you notice what his condition was that morning mentally, his mind?" And she answered: "He was very happy and glad; he was all right." The witness further testified that she had noticed nothing wrong with his men-office and told him in the presence of Schweital condition, except a few days from the 17th to the 25th of August, when he was delirious at times, mostly at night. The sister superior of the hospital testified that Mr. Nutter, the agent of the defendant who settled with the plaintiff, was at the hospital on September 19th, and that Mr. Schweikert gave her the check for safe-keeping which was given to him in settlement of his claim against the defendant. She testified she thought he was able to transact business on that day, and she never had any doubt of it, and that she did not notice anything in his actions or words that left any doubt in her mind as to his ability to transact busi

ness.

Mr. Nutter testified that he went to Chippewa Falls on August 20th, for the purpose of settling with plaintiff; that he called on him twice while he was there, but did not talk settlement with him, because the plaintiff was very sick. This latter statement is corroborated by the clinical report. His next visit was on September 19th, some nine days after a letter had been written to the defendant, purporting to come from the plaintiff, in which plaintiff's condition was described. He testified that he asked the Sister Superior what plaintiff's condition was, and she informed him that he was well, and there was really no reason why he could not leave the hospital and go to Phillips as soon as he liked, as there was nothing more they could do for him. He testified further that he told the plaintiff he was there to settle with him, and that plaintiff said he would probably be laid up for several months before he got out, so he could do a full day's work, and that he spoke of his expenses and of his renting a house at Phillips, and his expenses for wood and rent, and finally said he ought to have $250; that he didn't want to name a figure which would include his doctor and hospital bills, but that he wanted the company to pay those bills, and he thought he ought to have $250 besides, and that that would be satisfactory to him; that plaintiff's mental condition was all right, and that he gave plaintiff a check for $250, and agreed to pay the expenses referred to, and plaintiff signed a release. Further that

kert the claim that was made, and that Mr. Nutter said he did not promise anything, except what the agreement stated. Schweikert then said he was to have wood if he left the hospital quicker than he might have done, and that he might have remained in the hospital longer. Mr. Davis then told him he would give him some wood, but it was gratuitous. He asked plaintiff how much he wanted, and he said five loads. Witness further testified: "I told him we would give them to him, and when they were gone to come back and see me." This conversation occurred about the middle of November after plaintiff was discharged from the hospital. A letter was written to the defendant, under date of August 11, 1907, wherein a request was made for the balance due to the plaintiff, and the statement was made that he was gaining slowly. Plaintiff denied that he either wrote or signed this letter. There was evidence from which the jury might well have found that he signed the letter, although it might also have found the contrary. Defendant received another letter, purporting to come from the plaintiff, dated September 10, 1907, which was written in reply to a letter mailed plaintiff by the defendant under date of September 9th. In this letter the condition of plaintiff is described, and the statement is made that he is getting along all right, and it will not be very long until he returns to Phillips. The first sentence of the letter is: "I received your letter this morning and want to answer it right away." It is practically conceded that this letter was neither written nor signed by the plaintiff, but it is the contention of the defendant that it was dictated by him. The plaintiff, however, denies any knowledge of the letter or of its contents. He also denies any knowledge of signing the release, or any knowledge of indorsing the check which he received in settlement for his claim, and expresses doubt as to whether the name indorsed on the back of the check was written by him or not. There are some other facts in the case bearing on the mental competency of the plaintiff to execute the release, but the principal ones have been alluded to.

[1] This court has not been partial to con

[2, 3] To impeach a formal written instrument on the ground of fraud or mistake, the proof must be clear and convincing beyond a reasonable controversy. Jackowski v. Ill. Steel Co., 103 Wis. 448, 79 N. W. 757; Steffen v. Supreme Assembly of Defenders, 130 Wis. 485, 110 N. W. 401; Schiefelbein v. Fidelity & C. Co., 139 Wis. 612, 120 N. W. 398. The trial court instructed the jury that such was the law applicable to this case. Much deference must be given to the ultimate conclusion reached by the trial court. Lind v. Uniform Stave & Package Co., 140 Wis. 183, 188, 120 N. W. 839, and cases cited.

with unseemly and often indecent haste, for | circumstances chown in the case. His evitrifling amounts, when their physical and dence that he did not know anything for the mental condition was such that they were first seven weeks after he was injured is unable to intelligently comprehend what impeached by contradicting statements made they were doing. Lusted v. C. & N. W. Ry. by himself, as well as by other convincing Co., 71 Wis. 391, 36 N. W. 857; Albrecht v. evidence. It is true that the injury to the Milwaukee & Superior Ry. Co., 94 Wis. 397, plaintiff was serious, and that the amount 69 N. W. 63; Mensforth v. Chicago Brass paid him was small, but it is also true that Co., 142 Wis. 546, 126 N. W. 41, 512, 135 the questions of defendant's negligence and of Am. St. Rep. 1084; Buggs v. Rock County plaintiff's contributory negligence were, to Sugar Co., 143 Wis. 462, 128 N. W. 100. say the least, close, and the trial court set Settlements fairly made and untainted by aside the findings of the jury favorable to fraud are to be encouraged, rather than the plaintiff on both propositions, because lawsuits, however. If all a plaintiff need not supported by any credible evidence. So it do in an action of this kind in order to would be difficult to say that the certainty overturn a written agreement of a settle- of $250 and doctor and hospital bills would ment in fact fairly made is to swear that not be preferable in the instant case to the he was unconscious or insane at the time uncertainty of a lawsuit. he made it, employers would have little inducement to make settlements in any case directly with the employé. The latter has the benefit of the money which he received, whether there is any legal liability on the part of the employer or not. To allow the employé to secure what he can by way of a compromise settlement, and then resort to the courts to secure larger damages if he has a case, would enable him to practice a fraud which should not receive judicial countenance. Every fact and every circumstance, excluding the evidence of the plaintiff, tends to show a valid settlement in the instant case. Twenty days after the accident, the defendant sent its agent to interview the plaintiff in regard to a settlement. On that occasion the agent did not think the condition of the plaintiff was such that the matter of settlement should be discussed. Twenty days later the defendant received a letter, purporting to be written by the plaintiff, and in which he was made to say that he was improving right along; that he had been up in the three-wheel chair; that he expected to be on crutches in a week; and that it would not be very long until he would meet the defendant at its office, if everything went all right. It was nine days after this letter was written before defendant's agent called on the plaintiff. There is no pretense that the agent made any assertion of nonliability on the part of the defendant, or made any misrepresentations to him whatever. Plaintiff permitted the defendant to pay his hospital and doctor bills, and used the $250 which was paid him, and makes no satisfactory explanation as to why he thought the money was paid him and his bills taken care of. The clinical record is a convincing item of evidence to show menWhere joint owners of a solvent going business form a corporation, to which they tal competency on the part of the plaintiff. transfer the joint property in exchange for its He had such competency, unless Sister Gal- stock, its assumption of the liabilities of the la, the Sister Superior, Mr. Nutter, and Mr. joint owners may be by express or implied agreeDavis were mistaken in the evidence which ment, which, like any other fact, may be proved by any competent evidence which will estabthey gave, or testified to what they knewlish it. to be untrue. The evidence of the plaintiff [Ed. Note.-For other cases, see Corporations, generally is impeached by many facts and Dec. Dig. § 30.*]

[4] The evidence in this case is such that we do not think the conclusion of the trial court should be condemned, although contrary to that reached by the jury. In no case decided in this court, where the facts were substantially similar to those in the case at bar, has the court held that the evidence was sufficient to avoid a written instrument showing settlement. This conclusion renders unnecessary the consideration of any other questions raised in the case. Judgment affirmed.

ZIEMER v. C. G. BRETTING MFG. CO. (Supreme Court of Wisconsin. Nov. 14, 1911.) 1. EVIDENCE (§ 471*)-OPINION-CONCLUSION OF LAW.

One's testimony that, when a corporation it did not assume their liabilities therein, is took over the business of joint owners thereof, but his conclusion of law on the facts.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 2. CORPORATIONS (§ 30*) - CONVEYANCES TO CORPORATION-ASSUMPTION OF LIABILITIES.

3. CORPORATIONS (§ 485*)-CONVEYANCES TO | Henry L. Bretting. These four may be CORPORATION-ASSUMPTION OF LIABILITIES. said to have owned the foundry plant and Where joint owners of a manufacturing business as widow and heirs of C. G. Bretplant form a corporation, and it, in consideration of its shares of stock, takes over the plant ting, deceased. Ralph C., Henry L., and Wil"as of date of April 1st," and it continues the liam H. Bretting were under 21 years of same account books, under the same name at age, and Jane Bretting was their guardian. the same place, for the purpose of continuing the same business, it assumes any liability of On or about March 16, 1907, Jane Bretting, the joint owners for injury to an employé in Sam Wheeler, and C. A. Lamoreaux executed the business, occurring prior to the incorpora- articles of incorporation of the C. G. Brettion and the actual transfer, but subsequent to ting Manufacturing Company, and caused the April 1st. same to be duly filed with the Secretary of State and recorded with the register of deeds of Ashland county. This corporation was empowered by such articles to carry on a similar business to that carried on by the natural persons aforesaid, under the same name, and at the same place.

[Ed. Note.-For other cases, see Corporations, Dec. Dig. § 485.*]

Appeal from Circuit Court, Ashland County; E. W. Helms, Judge.

Action by W. W. Ziemer against the C. G. Bretting Manufacturing Company. Judgment for defendant. Plaintiff appeals. Re

versed, and remanded for new trial.

Eaton & Eaton and Frank Lamoreaux, for appellant. Lamoreux, Shea & Cate, for respondent.

The plaintiff was employed as a molder by the C. G. Bretting Manufacturing Company in April, 1907, and on June 19, 1907, while in that employment, was injured by reason of alleged defective appliances. The signers of the said articles of incorporation met on July 15, 1907, and received the subscriptions of Jane Bretting, Ralph Bretting, Sam Wheeler, and C. A. Lamoreaux to the capital stock of said corporation, and turned over the affairs of the corporation to the stockholders. The latter immediately and on the same day convened for the purpose of electing a board of directors and the transaction of other business. Among other things it was resolved "that the matter of the purchase of the C. G. Bretting manufacturing plant as heretofore conducted, consisting of real estate, buildings, machinery, and all per

TIMLIN, J. The former decision of this case is reported in 142 Wis. 224, 125 N. W. 318, where a judgment in favor of the plaintiff was reversed on the ground that the evidence failed to show that the plaintiff at the time of the injury was in the employ of the defendant corporation. The case was retried, and at the close of the testimony the circuit court directed a verdict for the defendant, for the reason that the plaintiff was not in the employment of the defendant at the time of the injury. The plaintiff appealed to this court, whereupon the parties entered into the following stipulation: "It is hereby stipulat-sonal property and accounts, as shown by the ed by and between the above-named parties that the judgment herein shall be affirmed, unless this court shall find that there was evidence in the case upon which the jury could have found that the plaintiff was in the employ of the defendant at the time he was injured, or that the defendant is hereby estopped from denying that the plaintiff was then in its employ, or that the defendant assumed liability for such injury."

statement and schedule this day filed with the secretary of this company, be and the same is hereby referred to the board of directors, and the said board is hereby empowered, directed, and authorized to purchase the said plant as of date of April 1, 1907, for the sum of $40,000, and to issue in consideration therefor shares of the general stock of this corporation at par, not to exceed the sum of $40,000; it being understood that the said plant is owned by Jane Bretting, Ralph C. Bretting, William Howard Bretting, and Henry Lyman Bretting, one-quarter each, and that the stock of said corporation in payment therefor shall be issued to said owners of

The appeal, therefore, involves an examination of the evidence. Evidence was offered, which did not appear when the case was formerly before this court. It appeared that C. G. Bretting carried on a foundry business, under the name of the C. G. Bretting Manu-equal amount-i. e., $10,000 of stock at parfacturing Company, at Ashland, Wis., prior to his death, which occurred in A. D. 1904. Jane Bretting, his widow, was then appointed administratrix, and ordered to close up the contracts and business on hand, and she continued the business under the same name. On January 21, 1907, she filed her final account as administratrix. On March 28, 1907, the inheritance tax was fixed. On April 2, 1907, she filed a supplemental or additional account as administratrix. C. G. Bretting left surviving him his widow and three sons, Ralph Bretting, William Henry Bretting, and

value to each of said owners above named." The schedule showed block 3, Commercial addition, Ashland, Wis., with the following buildings thereon: Foundry, blacksmith shop, boiler shop, machine shop, wood shop, pattern house, pumphouse; also a dwelling house on certain described lots, and certain machinery, tools, and fixtures, with stock on hand and other personal property, and a list of accounts receivable. On September 12, 1907, Jane Bretting and her three sons executed a transfer of this property to the corporation. The corporation used the same