procuring the release executed by the plain-gradual; that nerves from here down have tiff," and consequently it is unnecessary to recite any of the evidence given in the case other than the evidence bearing upon said release.

We quote from testimony of Mr. Burke on Mr. Redding, the division superintendent,

there was no evidence of fraud in procuring the release executed by the plaintiff," and therefore the review of this case will be confined to said question. The precise question involved in this case has not heretofore been passed upon by this court.

signed the release, came over to Shawnee | fendant in its brief, "that but one question and stated to plaintiff, "You are incapac- is presented by this appeal, and that is that itated for yard service," and at that time plaintiff turned to him and said, "You got the release through fraud," and that when he made the settlement he relied upon Dr. Porter's statement, believing it was true, or would not have settled; that he would not have made that settlement if he believed his [4] By adopting and pleading the release leg would not get well; that he agreed to as a defense, the defendant ratified the act take the $2,500 thinking he would fully re- of its surgeon in making the statement to cover, being assured by these doctors he the plaintiff, so as to present an issue of would get well; that what he wanted was fact whether the release was void for conthe use of his limb, and, if they were cor-structive fraud. Bertha v. Regal Motor Car rect that he would get well, he was compensated enough; that he wanted to go to work and be honest and loyal to them.

On cross-examination, the plaintiff testified: That these fraudulent representations were made by Dr. Porter and Dr. Plummer; that when he left Chicago he went in to see Dr. Porter, who examined the leg and told him to work it. He examined the knee, got the tape measure and started to measure it; however, he did not do it for some reason. He was a very busy man and examined it, and plaintiff called his attention to the grating and grinding of the knee, and he said, "That will come all right," and also said, "With gradual usage your leg will be all right, nothing in that will cause permanent injury," and plaintiff believes his next words were, "However, it would be better if the company would give you lighter duties to perform for a time so as to give the leg gradual use." That, in substance, Dr. Porter told him his leg was going to get well. That the case was turned over absolutely to Dr. Porter, but he would go to Dr. Plummer's office from time to time, and he examined the leg and tnought it was coming all right, and he thought his leg would be all right; come well.

At the close of the evidence, the defendant demurred thereto, which was overruled and excepted to. Thereupon the defendant requested that the court instruct the jury as follows:

Co., 180 Mich. 51, 146 N. W. 389. In the body of the opinion it is said:

"It is a proposition of law too fundamental and too well established to require a citation of authorities that, if a party adopts even unauthorized acts of another, and has received and accepted benefits accruing therefrom, he thereby adopts and ratifies the instrumentalities by which the results were obtained, and is estopped from denying that the agent was authorized to act. So in this case, by accepting this release, which upon its face is prima facie a release in its favor and for its sole benefit, by pleading the release as a defense to the suit, which has been paid to secure the release, by by refusing to accept the tender back of money its course of cross-examination to show that it had obtained the release and claiming the benefits of it, by admitting in open court that it had paid Dr. Goux for his services in caring for plaintiff, defendant must be held to have adopted and ratified the acts of the two representatives of the insurance company."

[1-3] In each of the following cases: St. Louis & S. F. Ry. Co. v. Richards, 23 Okl. 256, 102 Pac. 92, 23 L. R. A. (N. S.) 1032; St. Louis & S. F. Ry. Co. v. Reed, 37 Okl. 350, 132 Pac. 355; St. Louis & S. F. Ry. Co. v. Chester, 41 Okl. 369, 138 Pac. 150; St. Louis & S. F. Ry. Co. v. Bruner, 52 Okl. 349, 152 Pac. 1103; C., R. I. & P. Ry. Co. v. Cotton, 162 Pac. 763-the releases executed in settlement of personal injuries received were held to be invalid on account of "actual fraud perpetrated in securing the respective settlements" set up, while in the instant case the release is attacked "on, the ground of constructive fraud; fraud in law."

The actionable negligence of the defend

"(1) The court instructs the jury that, under the law and the evidence, its verdict mustant, and the injuries suffered by the plaintiff,

be for the defendant"

-which instruction the court refused to give, and the refusal to give said instruction was duly excepted to.

The jury returned the following verdict: "We, the jury, drawn, paneled and sworn in above-entitled cause, do upon our oaths find for the plaintiff in the sum of $7,500.00 less $2,500.00"

-to which the defendant excepted.

fendant basing its defense on the release are not questioned by the defendant; dewhich was executed by the plaintiff. The uncontradicted evidence is that the plaintiff juries received by the negligence of defendwas treated and operated upon for the inant, by the surgeon of the company, who positively stated to the plaintiff that his injuries were not permanent and he would recover, and these statements of the surgeon were communicated to the claim agent who

Timely motion was made for a new trial, which was overruled, exceptions saved, and error brought to this court. The assign-made the settlement with the plaintiff. Such ment of error is:

communication by the surgeon to the claim

(1) The court erred in overruling the de-agent doubtless was made with the intention fendant's demurrer to the plaintiff's evidence. of influencing the claim agent as to such set(2) The court erred in refusing to give the tlement. jury instruction No. 1.

If the statement of the surgeon to the

agent, had been merely an expression of his | in statu quo, restoring to each what he parted opinion as to the injuries suffered by the plaintiff, such statements would not have been sufficient to have avoided the release in question is in accord with the unbroken line of decision, but the positive statement of the surgeon, the servant of the defendant, in the instant case, was that the injuries of the plaintiff were not permanent and that he would fully recover, and we are of the opinion that the positive statements made by Dr. Porter, the servant of the defendant, to the plaintiff, were material, and that plaintiff had a right to rely thereon in making settlement, and said representations being untrue in fact, even though the falsity was not known to the said surgeon and were not made with intent to deceive the plain-A. tiff, plaintiff had a right to rescind the settlement, as the statement of the surgeon of the company that the injuries of plaintiff were not permanent and he would entirely recover, upon which statement plaintiff relied, constituted constructive fraud; fraud in law.

In Jacobson v. Chicago, Milwaukee & St. Paul Ry. Co., 132 Minn. 181, 156 N. W. 251, L. R. A. 1916D, 144, Ann. Cas. 1918A, p. 355, . it is held:

"(1) A settlement and release of a cause of action, induced and procured by false representations of material facts, the falsity of which was unknown to the person making them, may be rescinded and avoided, though there was no fraudulent or other wrongful intent to deceive or defraud.

"(2) Plaintiff was injured while a passenger on one of defendant's trains; soon thereafter defendant's physician made a physical examination of plaintiff's person and, to induce or cause him to act thereon, represented that he had suffered no serious injury, had no broken bones, and would recover in the course of two or three weeks. It is held that the representations were material, plaintiff had the right to rely thereon in effecting a settlement with defendant, and since the representations were untrue in fact, though the falsity was not known to the physician at the time, and were not made with intent to deceive, plaintiff had the right to rescind the settlement. Such facts

constitute fraud in law."

with, equity will grant relief where the repre-
contract were in fact false, though made in
sentations which induced and brought about the
good faith; the additional requirement being
that the representations must appear to have
been material, not mere opinion, and of a char-
frauded party. In such cases the courts grant
acter to justify reliance thereon by the de-
relief either upon the ground of fraud in law,
sometimes spoken of as constructive fraud, or
be termed fraud in law or mistake; the result
mutual mistake. It is not material whether it
is the same in either case. The rule now often
applied is tersely summed up by the Iowa
Supreme Court in the statement that a 'party
cannot falsely assert a fact to be true and in-
duce another to rely upon such statement to
his prejudice, and thereafter hide behind a claim
that he did not know it was false at the time
he asserted it.' Haigh v. White Way Laundry
(N. S.) 1091. The rule has frequently been
Co., 164 Iowa, 143, 145 N. W. 473, 50 L. R.
stated and applied in our former decisions both
in actions for a rescission of the contract and
where the alleged fraud has been presented as
defensive matter.
3819; Drake v. Fairmont Drain. Tile & B. Co.,
1 Dunnell, Minn. Dig. §
129 Minn. 145. 151 N. W. 914; Brooks v.
Hamilton, 15 Minn. 26 [Gil. 10]; Hedin v.
Minneapolis M. & S. Ass'n, 62 Minn. 146,
64 N. W. 158, 35 L. R. A. 417, 54 Am. St.
Rep. 628; Busterud v. Farrington, 36 Minn.
320, 31 N. W. 360. It was held in Bullitt v.
Farrar, 42 Minn. 8, 43 N. W. 566, 6 L. R. A.
149, 18 Am. St. Rep. 485, that it is a fraud
for one to make an unqualified representation
not knowing whether it is true or false, and
that an unqualified statement amounts to an
affirmation as of one's own knowledge.
merous decisions in other states support the
same doctrine. 14 Am. & Eng. Enc. (2d Ed.)
94; Holcomb v. Noble, 69 Mich. 396, 37 N. W.
497; Johnson v. Gulick, 46 Neb. 817, 65 N.
W. 883, 50 Am. St. Rep. 629; Pattison v. Seattle,
R. & S. Ry. Co., 55 Wash. 625, 104 Pac. 825;
Carroll v. United Railways Co. of St. Louis,
157 Mo. App. 247, 137 S. W. 303; Missouri, K.
& T. Ry. Co. v. Maples (Tex. Civ. App.) 162 S.
W. 426; Kathan v. Comstock, 140 Wis. 427,
122 N. W. 1044, 28 L. R. A. (N. S.) 201, and
cases cited in note.

Nu

"In the case at bar the physician representing defendant made a physical examination of plaintiff a short time after the accident; upon the examination so made he represented to plaintiff the facts heretofore stated, which were repeated by the claim agent. The jury was fully justified in finding the representations were in fact untrue, though not intentionally In the body of the opinion it is said: so, and that they were made to induce a settlement of plaintiff's claim for damages. Plain"Defendant's contention is that, to entitle tiff relied, and had the right to rely, upon the plaintiff to rescind the release, it was incumbent representations, and the jury properly found upon him to show that he was induced to ex- that he was induced thereby to make the setecute it by the intentional deception of the tlement and sign the release. This brings the physician and claim agent, and that the court case within the rule of the authorities cited. erred in not so charging the jury. We do not The representations, aside from the statement sustain the point. It may be conceded that an that no bones were broken, were matters of essential element of the old common-law action substance and not the mere opinion of the physiof deceit is intentional fraud and deception, cian. Marple v. Minneapolis & St. L. R. Co., and that as a general rule no recovery can be 115 Minn. 262, 132 N. W. 333, Ann. Cas. had in such an action where intentional decep- 1912D, 1082. The trial court was therefore tion does not appear. And there are many authorities holding to a strict application of the tions that an intention to deceive was an not in error in refusing the requested instruc rule, and as requiring an affirmative showing sential to plaintiff's right to recover, nor was of an intent to defraud and deceive in all cases there error in the refusal of the request to the where relief is sought on the ground of fraud-effect that if the jury found that plaintiff sufulent representations. As thus strictly applied, fered no broken bones he could not recover." much injustice has resulted, and the courts have ingrafted upon the rule modifications and qualifications, and the present trend of judicial opinion does not require in all cases a showing of an evil intent. The injury suffered by the defrauded party may be just as great, whether the fraud was intentional or unintentional. So in actions the result of which places the parties

es

In Gertrude Haigh v. White Way Laundry Co., 164 Iowa, p. 143, 145 N. W. 473, 50 L. R. A. (N. S.) 1091, it is held:

"The mere expression of an erroneous opinion concerning the recovery of one injured, if honestly made, will not authorize the setting

aside of a settlement for the injury; but if [ "Erroneous statements of a physician who coupled with statements of fact concerning the nature and character of the injury which were not true, but having a direct bearing upon the extent of liability and likely to induce a belief in speedy recovery, will constitute ground for setting aside the settlement and release."

In Tatman v. Philadelphia, Baltimore & Washington R. Co., 10 Del. Ch. 105, 85 Atl.

716, it is held:

"An innocent misrepresentation by defendant's physician, relied on by both parties, as to the kind of injury received by plaintiff, may avoid the release."

treated plaintiff at defendant's hospital, that his injuries were not permanent, will, if relied upon by the plaintiff, render void a contract of release, signed by plaintiff, relieving defendant from liability."

In Ballenger v. Southern Ry. Co., 106 S. C. 200, 90 S. E. 1019, it is held:

"For false representations of a railroad's surgeon as to the extent of an employé's injury, he failing to exercise due care in ascertaining the facts on which he based his opinion as to the condition of the injury, a release of the company's liability, thereafter obtained by the claim In the body of the opinion it is said: agent and signed by the employé to get further "A_case in point is that of the Great North-employment, as the surgeon knew would be nec

essary, may be set aside; the employé in signing having acted on the surgeon's representa

tions."

The cases of St. Louis & S. F. Ry. Co. v. Richards, St. Louis & S. F. Ry. Co. v. Reed, St. Louis & S. F. Ry. Co. v. Chester, St. Louis & S. F. Ry. Co. v. Bruner, and Chicago, R. I. & P. Ry. Co. v. Cotton, supra, are not in conflict with the opinion expressed in this case. In short, we think a release for injuries suffered, whether brought about by actual fraud or by constructive fraud, fraud in law, as in the instant case, the party executing such release has a right to repudiate the same, and therefore the court did not err in overruling the demurrer to the evidence, or in declining to instruct the jury affirmatively for the defendant.

ern Ry. Co. v. Fowler, supra [136 Fed. 118, 69 C. C. A. 106]. There the complainant, a brakeman on the railroad, after being injured went with a claim agent of the company to the physician of the company, who found a scalp wound and a contusion of the shoulder and nothing more, but told the injured man that he was practically well and would be able to go to work in a week or two. Without other advice, the complainant settled for an amount equal to wages he would lose and bills for doctors and nurses. A release was given, which apparently was general in form, without specifying the injuries. Later it developed that the injuries were serious, the disability permanent, and a dangerous surgical operation was performed. The Circuit Court of Appeals affirmed the decision of the Circuit Court annulling the settlement and release. The appellate court found that there was a mutual mistake as to the nature and extent of the injuries and that the settlement was induced by the advice of the surgeon of the releasee without other advice, and therefore that the release should be set aside. The court distinguished the case before it from one where there was no misrepresentation on the part of the releasee and the releasor simply relied on the opinion expressed by the physician of the releasee employed to examine and report on the injuries. Such a case was Nelson v. Minneapolis, etc., Co., 61 Minn. 168, 63 N. W. 486. Judge Gilbert thus distinguished: 'But it is equally true that a mutual mistake of fact or an innocent misrep- COOPER v. STATE ex rel. HARDY, Co. Atty. resentation of the facts of the releasor's injury, made by the releasee's physician, may be effective to avoid a release induced thereby."

In St. Louis, I. M. & So. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, it is held: "If the chief surgeon of a railroad company in good faith represents to an injured employé that his injuries are slight and temporary when they are serious and permanent, and thereby misleads him into signing a release of the railroad company from damages, such release is not binding."

In M. F. Ladd v. Chicago, Rock Island & Pacific Ry. Co., 97 Kan. 543, 155 Pac. 943, it is held:

"A release of a claim against a railway company for damages for personal injury, for a nominal consideration, procured by false representations as to the conditions and effect of the release, signed under the mistaken belief that the injuries were neither serious nor permanent, that belief having been brought about by the statements of the railway company's doctor, is not binding on the person signing the release, where the injuries finally prove to be serious and permanent."

In St. Louis, Iron Mountain & Southern Ry. Co. v. Morgan, 115 Ark. 530, 171 S. W. 1187, it is held:

We are unable to say that the trial court erred in overruling the motion for a new trial.

This cause is affirmed.

PER CURIAM. Adopted in whole.

(No. 9130.)
(Supreme Court of Oklahoma.

Oct. 8, 1918.)

The judgment of the trial court is reversed, and the cause remanded, with instructions to restore the automobile to the person entitled to the possession thereof, upon the authority of No. 9008. One Caddilac Automobile et al. v. State of Oklahoma, 172 Pac. 62, recently handed down, but not yet officially reported.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Appurtenance.]

Error from District Court, Carter County; W. F. Freeman, Judge.

Proceeding by the State of Oklahoma, on the relation of A. J. Hardy, County Attorney of Carter County, against one automobile; Tom Cooper, claimant. Judgment for relator, and claimant brings error. Reversed, and cause remanded, with instructions to restore automobile to person entitled to its possession.

Wm. G. Davisson, of Ardmore, for plaintiff in error. A. J. Hardy and J. A. Bass, both of Ardmore, for defendant in error.

KANE, J. This case seems to be in all respects identical with the case of One Caddilac Automobile et al. v. State of Oklahoma, 172 Pac. 62, recently handed down by this court, but not yet officially reported, wherein it was held:

"An automobile used January 3, 1917, in the unlawful conveyance of intoxicating liquor in the presence of an officer having power to serve criminal process, was not subject to seizure by such official and forfeiture to the state under the provision of section 3617, Rev. Laws 1910, and is not an 'appurtenance within the meaning of that section, which provided: 'When a violation of any provision of this chapter [chapter 39, Intoxicating Liquors] shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully

used.''

As the action of the trial court herein is contrary to the rule announced in the foregoing case, the judgment rendered must be reversed, and the cause remanded, with instructions to restore the automobile involved to the person entitled to the possession thereof. All the Justices concur.

BOARD OF EDUCATION OF CITY OF
MUSKOGEE v. VALEUR. (No. 9200.)
(Supreme Court of Oklahoma. Oct. 8, 1918.)

(Syllabus by the Court.)

1. OFFICERS 101-ACTION FOR SALARY
DEFENSE OF ABANDONMENT-PROOF.
Where, in defense of an action brought by
plaintiff to recover salary alleged to be due him,
it is urged that plaintiff had abandoned his
position, proof of abandonment must be clear,
unequivocal, and decisive.

2. SCHOOLS AND SCHOOL DISTRICTS 63(5)-
ACTION FOR SALARY-DIRECTED VERDICT
EVIDENCE.

Evidence examined, and held, that the court was right in instructing a verdict for plaintiff.

Error from District Court, Muskogee County; Chas. G. Watts, Judge.

Suit by Henry O. Valeur against the Board of Education of the City of Muskogee. Judgment for plaintiff, upon a directed verdict, and defendant brings error. Affirmed. J. F. Brett, of Muskogee, for plaintiff in error. J. E. Wyand and B. Broaddus, both of Muskogee, for defendant in error.

structed in plaintiff's favor, and error is assigned on this action.

[1, 2] The only question urged is the sufficiency of the evidence to raise an issue for the determination of the jury. It is admitted that plaintiff was employed by the board of education at a salary of $150 per month, and that on July 31st a resolution was adopted that his services be dispensed with on August 15th. Plaintiff testified that he was working under certain printed rules of the defendant defining his duties, and that he continued to perform these duties until August 15th; that when the resolution to dispense with his services was adopted be took certain private belongings and moved them out of the room occupied by him as an office into an adjoining room, leaving all of the furniture, records, and property of the board of education in the room vacated; and that he continued to perform his duties during all of the 15 days. The evidence on behalf of the defendant was that plaintiff vacated the room occupied by him as an office, taking therefrom certain property, and leaving therein a table, a bookcase, some records, and a little pile of junk, locking the doors The witness Baker, between the two rooms. who succeeded plaintiff, testified that he started to work on August 12th, and visited a part of the buildings during the ensuing 3 days, and that he did not see plaintiff performing any of the duties during that time. This is practically all of the evidence upon this issue.

The court was right in instructing a verdict. There was no evidence reasonably tending to show that plaintiff abandoned his office or failed to perform the duties thereof. The keys to the buildings of the school 'district were retained by plaintiff until the 17th day of August, and were not demanded of him until that time, thus indicating that

the board of education did not think at the time that the duties of the office were being neglected or that plaintiff had abandoned his position. The burden of proof was upon defendant to show that plaintiff had abandoned his contract, and this must appear by clear, unequivocal, and decisive evidence showing an intention upon the part of plaintiff to terminate the relation between him and defendant and to renounce the compensation attached to the place. 1 C. J. 7. The only evidence offered to show abandonment was the fact that plaintiff had removed certain private belongings from the room occupied by him as his office, and that he was HARDY, J. Henry O. Valeur, who will be not seen at two of the buildings which rereferred to as plaintiff, brought suit against quired his attention during the period from the board of education of the city of Musko- the 12th of August to the 15th of that month. gee, who will be referred to as defendant, to These facts are wholly insufficient to show recover the sum of $75 alleged to be due him an abandonment of the office, and in view of as salary from August 1, to August 15, 1915. the positive evidence that the usual duties of At the close of the evidence verdict was in- the office were performed by plaintiff during