Whitfield, J.,
delivered the opinion of the court.
The fifth instruction for the plaintiff was in these words: “The court instructs the jury that, if they believe, from the evidence, that the agents of defendant, who procured the release, knew that plaintiff, on account of prostration from suffering, or the stupefying effects of drugs administered for his release from pain, was not in a condition to consider, weigh and understand any business proposition or transaction, and that defendant’s agents, desiring to take advantage of, surprise and overreach plaintiff, then came to his bedside, and obtained a settlement and release, and that the plaintiff did not and could not weigh, consider or understand the nature, scope and meaning of the same, and was not in a rational state of mind, then such conduct and procurement would be fraudulent, and plaintiff would not be bound by the settlement, unless, after being fully informed of all the facts, and' of his rights in the premises, he concluded to treat it as a final settlement, notwithstanding such imposition upon him.” The words, “and of his rights in the premises, ’ ’ were a modification by the court. The court also modified the sixth charge given for the defendant by inserting after the words “was informed of its [the release’s] nature and character,” the words “and of his right to disaffirm it, and be restored to his original right.” And in the seventh instruction for the defendant the court inserted after the words ‘ he was capable of understanding the nature [121]*121and consequences of the contract he had made,” the words and of his right to annul and repudiate it. ’ ’
It is insisted that these modifications were erroneous and were in the face of the maxim, ‘ ‘ ignorantia juris hand ex-cusat. ” The instructions should all be viewed together as a whole, and, thus viewed, looked at, further, in the light of the particular case made by the facts. If the modifications of these instructions meant (what it is insisted they mean) that the plaintiff should not have been presumed to know ‘ the general law of the land”' — the sense in which the word “jus” is used in the maxim — undoubtedly the modifications were erroneous. Mr. Pomeroy says (2 Pom. Eq. Jur., §811): “Mistake of law may be on ignorance or error with respect to some general rules of the municipal law applicable to all persons, which regulate human conduct, determine rights of property, of conduct and the like — such as the rules making certain acts criminal, and those controlling the devolution, acquisition or transfer of estates, and those prescribing the modes of entering into agreements. On the other hand, the term may mean the ignorance or error of a particular person with respect to his own legal rights and interests which are affected by, or which result from, a certain transaction in which he engages.” And in section 812 he says the maxim has ‘ no application to the mistakes of persons as to their own private legal rights and interests. ” And in section 8é9 he tells us the reason of the distinction is that a private legal right, title, estate, interest, duty, or liability is always a very complex conception. It necessarily depends so much upon conditions of fact that it is difficult, if not impossible, to form a distinct notion of a private legal right, interest or liability, separated from the facts in which it is involved and on which it depends. Mistakes, therefore, of a person with respect to his own private legal rights and liabilities, may be properly regarded — as in great measure they really are — and may be dealt with, as mistakes of fact. ’ ’ See, further, sections 811-850, and the notes, with the authorities.
[122]*122We have most carefully examined the authorities on this distinction, and, without burdening this opinion with quotations, feel no hesitancy in saying it is clearly shown and most abundantly established by the highest authority. We append a few of the authorities. See, especially, Blakeman v. Blakeman, 39 Conn., 320, a strong and very striking case; 1 Wharton on Contracts, §§ 198-201, specially § 199; Pollock on Contracts (1st Am. from 2d Eng. ed.), pp. 116-118, and notes a, b, page 118; Clarke on Contracts (ed. 1891), p. 306, and the authorities in notes 10, 11; Toland v. Corey, 6 Utah, 396 (the court saying, as to the maxim, “It is only applicable when the mistake is as to the general law, not to a case where a party is mistaken as to the effect of existing circumstances in relation to his private rights ”); Griffith v. Sebastian Co., 49 Ark., 24; Wilson v. Md. Life Ins. Co. of Baltimore, 60 Md., 150; 1 Beach on Mod. Eq. Jur., §§ 37, 38; Macknet v. Macknet, 29 N. J. Eq., 54; 1 White & T. Lead. Cas. Eq., part 2, English notes at top of page 825, American notes on page 830. And see, as illustrative, Vasse v. Smith, 1 Am. Lead. Cas., p. 310; Lawson on Contracts (ed. 1893), § 111; Fetrow v. Wiseman, 40 Ind., 156. Flexner v. Dickerson, 72 Ala., 322; Owen v. Long, 112 Mass., 404; and, especially, the exhaustive note to Craig v. Van Bebber (Mo. Sup.), 18 Am. St. Rep., at top of page 706 (13 S. W., 906), the author noting a distinction in the application of the rule under discussion in this illustrative class of cases to the case where a disability has been removed. Hunt v. Rousmaniere, 1 Pet., 1.
We think the modifications of these instructions fall within this distinction, and not within the general rule. When the court charged that appellee should be informed of “his right in the premises,” of “his right to disaffirm and be restored to his original right, ’ ’ and of ‘ ‘ his right to annul and repudiate the release,” it did so in charges presenting this concrete case on all its facts, and meant merely that he should, after being informed of the facts attending the execution of the release and [123]*123subsequent thereto, up to the time he was competent to act, be informed, also, or know, of his personal, private right, arising out of these facts, existing when he was .called upon to ratify or repudiate, to repudiate it. He had a right to know these facts, and also their effect upon his right to repudiate the release voidable for fraud. We think this is, manifestly, the fair meaning of these modifications, and they were not, therefore, erroneous.
Ahogent de Me Willie, for the appellant,
filed the following suggestion of error:
This was not an action for a deceit practiced upon the plaintiff, nor was it, like the cases cited by the court in its opinion, a proceeding in equity. Pomeroy seems to be the founder of the view adopted by the court as to the ignorance of the law that will excuse. Eq. Juris., §§842, 849. It is not difficult to get at the author’s meaning on reading all that he has to say on the subject. He is discussing a well-known, well-recognized and unbending maxim of the law, and the jurisprudence of equity in reference to it, often invoked to mitigate its rigor. As to this, he draws the distinctions which attracted the attention of the court, and especially refers, in the footnote, to Plowden for an announcement of the rule at law: “ It is presumecl that no subject of the realm is miscognizant of the law whereby he is governed. Ignorance of the law excuses none. ’ ’ He follows the statement of the rule in its primary signification by a distinct reference to the £ £ two species in equity contained in the second class,” which, he says, ££are mistakes as to individual legal rights” (§ 841). Free access — add to your briefcase to read the full text and ask questions with AI
Whitfield, J.,
delivered the opinion of the court.
The fifth instruction for the plaintiff was in these words: “The court instructs the jury that, if they believe, from the evidence, that the agents of defendant, who procured the release, knew that plaintiff, on account of prostration from suffering, or the stupefying effects of drugs administered for his release from pain, was not in a condition to consider, weigh and understand any business proposition or transaction, and that defendant’s agents, desiring to take advantage of, surprise and overreach plaintiff, then came to his bedside, and obtained a settlement and release, and that the plaintiff did not and could not weigh, consider or understand the nature, scope and meaning of the same, and was not in a rational state of mind, then such conduct and procurement would be fraudulent, and plaintiff would not be bound by the settlement, unless, after being fully informed of all the facts, and' of his rights in the premises, he concluded to treat it as a final settlement, notwithstanding such imposition upon him.” The words, “and of his rights in the premises, ’ ’ were a modification by the court. The court also modified the sixth charge given for the defendant by inserting after the words “was informed of its [the release’s] nature and character,” the words “and of his right to disaffirm it, and be restored to his original right.” And in the seventh instruction for the defendant the court inserted after the words ‘ he was capable of understanding the nature [121]*121and consequences of the contract he had made,” the words and of his right to annul and repudiate it. ’ ’
It is insisted that these modifications were erroneous and were in the face of the maxim, ‘ ‘ ignorantia juris hand ex-cusat. ” The instructions should all be viewed together as a whole, and, thus viewed, looked at, further, in the light of the particular case made by the facts. If the modifications of these instructions meant (what it is insisted they mean) that the plaintiff should not have been presumed to know ‘ the general law of the land”' — the sense in which the word “jus” is used in the maxim — undoubtedly the modifications were erroneous. Mr. Pomeroy says (2 Pom. Eq. Jur., §811): “Mistake of law may be on ignorance or error with respect to some general rules of the municipal law applicable to all persons, which regulate human conduct, determine rights of property, of conduct and the like — such as the rules making certain acts criminal, and those controlling the devolution, acquisition or transfer of estates, and those prescribing the modes of entering into agreements. On the other hand, the term may mean the ignorance or error of a particular person with respect to his own legal rights and interests which are affected by, or which result from, a certain transaction in which he engages.” And in section 812 he says the maxim has ‘ no application to the mistakes of persons as to their own private legal rights and interests. ” And in section 8é9 he tells us the reason of the distinction is that a private legal right, title, estate, interest, duty, or liability is always a very complex conception. It necessarily depends so much upon conditions of fact that it is difficult, if not impossible, to form a distinct notion of a private legal right, interest or liability, separated from the facts in which it is involved and on which it depends. Mistakes, therefore, of a person with respect to his own private legal rights and liabilities, may be properly regarded — as in great measure they really are — and may be dealt with, as mistakes of fact. ’ ’ See, further, sections 811-850, and the notes, with the authorities.
[122]*122We have most carefully examined the authorities on this distinction, and, without burdening this opinion with quotations, feel no hesitancy in saying it is clearly shown and most abundantly established by the highest authority. We append a few of the authorities. See, especially, Blakeman v. Blakeman, 39 Conn., 320, a strong and very striking case; 1 Wharton on Contracts, §§ 198-201, specially § 199; Pollock on Contracts (1st Am. from 2d Eng. ed.), pp. 116-118, and notes a, b, page 118; Clarke on Contracts (ed. 1891), p. 306, and the authorities in notes 10, 11; Toland v. Corey, 6 Utah, 396 (the court saying, as to the maxim, “It is only applicable when the mistake is as to the general law, not to a case where a party is mistaken as to the effect of existing circumstances in relation to his private rights ”); Griffith v. Sebastian Co., 49 Ark., 24; Wilson v. Md. Life Ins. Co. of Baltimore, 60 Md., 150; 1 Beach on Mod. Eq. Jur., §§ 37, 38; Macknet v. Macknet, 29 N. J. Eq., 54; 1 White & T. Lead. Cas. Eq., part 2, English notes at top of page 825, American notes on page 830. And see, as illustrative, Vasse v. Smith, 1 Am. Lead. Cas., p. 310; Lawson on Contracts (ed. 1893), § 111; Fetrow v. Wiseman, 40 Ind., 156. Flexner v. Dickerson, 72 Ala., 322; Owen v. Long, 112 Mass., 404; and, especially, the exhaustive note to Craig v. Van Bebber (Mo. Sup.), 18 Am. St. Rep., at top of page 706 (13 S. W., 906), the author noting a distinction in the application of the rule under discussion in this illustrative class of cases to the case where a disability has been removed. Hunt v. Rousmaniere, 1 Pet., 1.
We think the modifications of these instructions fall within this distinction, and not within the general rule. When the court charged that appellee should be informed of “his right in the premises,” of “his right to disaffirm and be restored to his original right, ’ ’ and of ‘ ‘ his right to annul and repudiate the release,” it did so in charges presenting this concrete case on all its facts, and meant merely that he should, after being informed of the facts attending the execution of the release and [123]*123subsequent thereto, up to the time he was competent to act, be informed, also, or know, of his personal, private right, arising out of these facts, existing when he was .called upon to ratify or repudiate, to repudiate it. He had a right to know these facts, and also their effect upon his right to repudiate the release voidable for fraud. We think this is, manifestly, the fair meaning of these modifications, and they were not, therefore, erroneous.
Ahogent de Me Willie, for the appellant,
filed the following suggestion of error:
This was not an action for a deceit practiced upon the plaintiff, nor was it, like the cases cited by the court in its opinion, a proceeding in equity. Pomeroy seems to be the founder of the view adopted by the court as to the ignorance of the law that will excuse. Eq. Juris., §§842, 849. It is not difficult to get at the author’s meaning on reading all that he has to say on the subject. He is discussing a well-known, well-recognized and unbending maxim of the law, and the jurisprudence of equity in reference to it, often invoked to mitigate its rigor. As to this, he draws the distinctions which attracted the attention of the court, and especially refers, in the footnote, to Plowden for an announcement of the rule at law: “ It is presumecl that no subject of the realm is miscognizant of the law whereby he is governed. Ignorance of the law excuses none. ’ ’ He follows the statement of the rule in its primary signification by a distinct reference to the £ £ two species in equity contained in the second class,” which, he says, ££are mistakes as to individual legal rights” (§ 841). He concedes that a mistake of law, pure and simple, is not ground for equitable relief, and illustrates it by a reference to the leading case of Bilbi v. Lumley, 2 East, 469, where an insurer, with knowledge of all the facts which destroyed his liability on a policy of insurance which he had signed, but in ignorance of the legal rights resulting from these facts, paid the amount he had insured, and afterwards brought an action to recover back the money as paid under a mistake. The court held that the action could not be maintained. Lord Ellenborough said: £ £ Every man must be taken to be cognizant of the law, otherwise there is no saying to what extent the ignorance might be carried. It would be urged in almost every case.” Note 1, p. 304, § 842. The cases in equity sustaining this declaration are almost innumerable. There must be other circumstances connected with the particular transaction which bring it within one or the other of the recognized grounds for equitable intervention, as determined in Bank of United States v. Daniel, 12 Peters, 56, a case in equity. In Hunt v. Rousmaniere's Admr., 1 Peters, 15, the court said: ££ We hold the general rule to be that a mistake of this character is not a ground for reforming a deed founded on such a mistake; and, whatever exceptions there may be to this-rule, they are not only few in number, but they will be found to have something peculiar in their characters. ’ ’
[123]*123The verdict of the jury must be accepted as a finding both that appellee was guilty' of no wilful and wantonly reckless conduct, and that the car was “kicked.” The statute does not mean that one who wantonly puts his foot on a rail, to have it cut off by a kicked car, can shelter himself under its terms by saying contributory negligence is no defense. The negligence which usually and ordinarily contributes proximately to the injury, without which the injury would not have occurred, consisting in the want of ordinary care in the situation, is what is meant by the statute, not the voluntary, deliberate, wilful, reckless exposure of one’s self to injury. We find no error.
Affirmed.
We would offer a deferential dissent from the interpretation given to sections 841 and 84.2 of Pomeroy’s Equity Jurisprudence. In the former he is merely referring to the distinction in the classes of cases where the assumed ignorance of the law may appear. In the second class he embraces cases in which there may be the ignorance or error of the particular person with respect to his own legal rights and interests which are affected by, or which result from, a certain transaction in which he engages. Later on in the same section he says this application of the term may present two entirely different conditions, one. of which is where tlje person to enter ‘£ into the transaction may be ignorant of, or mistaken about, his own antecedent legal rights and interests which are to be affected by what he does, although he correctly apprehends and fully understands the legal import of the transaction itself and its true effects upon his supposed legal rights.” In the footnote he says: ££ Compromises are the most common illustration of this species, where the parties correctly understand the legal effect of the agreement itself which they make and of the instruments which they execute, and the mistake consists of their ignorance or error as to the nature of the prior legal rights which they possessed, and which they surrender by means of the compromise. It will be found, I think, that a great majority of the cases in which mistakes of law have been relieved belong to this species. ’ ’ He is only here stating a general proposition for subsequent discussion. In section 842 he does not state that the maxim has £ £ no application to the mistakes of persons as to their own private legal rights and interests,” but that judges of the highest ability have so remarked in disposing of certain cases before them, and refers us in footnote 1 to the case of Cooper v. Phibbs, L. R., 2 H. L., 149, 170, in which Lord Westbury spoke of a private right of ownership as a matter of mistake of fact. £ ‘ It may be the result also of a mistake of law, but if the parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceeded upon a common mistake.” The language of the judge had reference exclusively to the case before him. He also refers in the note to the case of Lansdowne v. Lansdowne, 2 J. & W., 205, where the owner of land, through a mistake and misapprehension of law, brought about by a common adviser, conveyed away his property. The parties acted upon his mistaken view, and not their own. As limited in its application to this kind of case, the general rule in equity may prevail.
In § 813, the learned anchor actually discussed the exceptions to the rule, which, in § 812, he tells us certain judges had announced, as obiter dicta in cases to which they had no special reference, as he shows in the note above referred to, quoting the words of Lord Westbury. We are here informed, however, that the exception or rule noted ‘£ is not, in its full extent, sustained by authority; indeed, a portion of its conclusions is directly opposed to the overwhelming weight of judicial decisions.” He also informs us in what this opposition consists: “The rule is well settled that a.simple mistake by a party as to the legal effect of an agreement he executes, or as to the legal result of an act which he performs, is no ground for either defensive or affirmative relief. ’ ’ This well-settled rule, even in equity, would necessitate a reversal of this court’s judgment. With knowledge of the fact that he had released the defendant, and that the money he had was paid to him as the consideration therefor, Jones used and spent the money received. Now, he may have been ignorant “ as to the legal result of this act, ’ ’ or the successive acts of this character, but, according to Pomeroy himself, it is £ 1 no ground for defensive or affirmative relief.” He had, by his acts, ratified the release which he had the right to avoid on the facts set up in his replication to the plea.
delivered the opinion of the court in response to the suggestion of error.
The point with respect to the pleadings, now earnestly pressed upon the court, was only incidentally referred to on the former argument of the cause, and, we think, with good reason, for the rejoinder to the first replication to the defendant’s second plea distinctly put in issue the validity of the alleged ratification, and the rebutter thereto traversed it.
[127]*127On the modifications of the charges by the court, we are satisfied, after a careful re-examination of the authorities, we announced the correct rule in our former opinion. The authorities are not .confined to cases in equity.
The right which one has to nullify an alleged ratification by him of a voidable release executed by him, by showing that when he was alleged to have so ratified, he was not aware of his private legal right arising out of the facts, to repudiate such release, is a substantive right, and not the mere rule by which a court of chancery administers his right; and, as such substantive right, it is available in avoidance of such alleged release, as well at law as in equity. If such person filed his bill to cancel an alleged written ratification, on such ground, all that the court does is to cancel and annul the alleged written ratification, so that it shall not form the -basis for the assertion of any right resulting therefrom to the party holding it against the person filing the bill. When such person is allowed to show at law want of knowledge of such private legal right to repudiate the release, the same end is accomplished, the proof cancels and annuls the alleged written ratification. It is the same substantive right, inhering in the very truth and justice of the case administered in both instances — administered .in one form in one forum and in another form in another^ Here the ratification alleged rests wholly in parol. How is the party seeking to be relieved to cancel, by bill in equity, an alleged parol ratification ?
Suggestion of error overruled.