Before MAJOR, LINDLEY and SCHNACKENBERG, Circuit Judges.
This action for damages was brought by Emma Marshall, administratrix of the estate of Everett Marshall, deceased, and was predicated upon the Federal Employers' Liability Act, Title 45 U.S.C.A. § 51 et seq. The damages sought to be recovered were those resulting from the death of Everett Marshall, husband of the plaintiff administratrix, while an employee of the defendant, The New York Central Railroad Company. Plaintiff's decedent was a section laborer and was injured on June 3, 1952, when a motorcar upon which he and other employees were riding was derailed as the result of a defective wheel. The decedent died the day following that on which he received his injuries. The accident happened near Elkhart, Indiana, and at that time decedent was 54 years of age. Of those designated as beneficiaries under the Act, the decedent left only his widow, the administratrix in the instant action.
The complaint contained allegations common to an action under the Federal Employers' Liability Act. Defendant by its answer made general denials of the material allegations and, in addition, pleaded the affirmative defense that the plaintiff, on June 6, 1952, executed and delivered to defendant a release "whereby she forever released and discharged this defendant of any and all liability, claim and demand upon or growing out of the facts alleged in the complaint." A copy of the release showing receipt by plaintiff of $4,350.00 was attached to and made a part of the answer.
Plaintiff in her reply to this amended answer alleged that the release was obtained through the "fraud, connivance, and misrepresentation of the agents and representatives of the defendant." Four specific acts of fraud were enumerated in the answer, which we think may be fairly stated in abbreviated form as follows: that the payment of $4,350.00 was falsely represented to be an advance for funeral expenses and the payment of other bills; that the release was fraudulently represented to be a receipt; that defendant falsely informed plaintiff that it had investigated the accident in which her husband was injured and was unable to determine its cause, and that defendant's claim agents connived with attorney Cholis who pretended to represent and advise plaintiff as her attorney when as a matter of fact he was not, and that he advised her falsely as to her rights as well as to the liabilities of the defendant.
The cause was tried to a jury, and at the close of plaintiff's case the court, on defendant's motion, directed a verdict in favor of the defendant and entered its judgment accordingly. The ruling was based solely upon the conclusion that plaintiff's proof was insufficient to raise a submissible issue on the question of fraud. From the judgment thus entered plaintiff appeals.
Thus, the sole issue here is whether the court erred in directing a verdict on the issue of fraud or, to state the issue in different words, whether the court erred in its refusal to submit the fraud issue to the jury. The District Judge stated and the defendant concedes that the proof was sufficient on all other issues to take the case to the jury.
The only testimony offered relative to the issue for decision was that of Emma Marshall, the plaintiff administratrix and widow of the decedent. Her testimony as to the circumstances which preceded as well as those attendant upon the execution of the release covers some sixty pages of the printed record. A reading of this testimony reveals considerable confusion, as well as inconsistencies and contradictions. Defendant complains that plaintiff in her brief has selected portions of this testimony favorable to her and ignored that which is contrary and conflicting. That plaintiff has done so is evident but, at the same time, we think it permissible in view of the limited issue for decision. Certainly all must agree that it is not the province of this court, neither was it that of the District Court, to weigh and evaluate any conflicts or contradictions in plaintiff's testimony. That is peculiarly the function of a jury. Plaintiff was and is entitled to have her testimony, together with all reasonable inferences arising therefrom, considered in the light most favorable to her. Defendant's motion raised only a question of law as to whether there was any evidence which, if believed by the jury, would have authorized a finding in her favor on the issue of fraud. See O'Day v. Chicago River & Indiana Railroad Co., 7 Cir., 216 F.2d 79, and cases therein cited.
Plaintiff at the time of the trial was 54 years of age and had been married to the decedent since 1950. Her schooling consisted of a seventh grade education and she had had no experience in business. As stated, the decedent was injured June 3, 1952, and died the following day. On the date of his death, defendant's claim agent, Mr. W. A. Smith, called on plaintiff at her home. She testified that she was "in terrible grief" and that Smith told her "he was there to help me in whatsoever my needs would be and that he was there to see about putting my husband away, and things like that." She was interrogated and answered as follows:
"Q. What did you tell him you needed? A. He said he was there to let me have money which you need for the paying off on bills, for to bury my husband and things like that.
"Q. What did you tell him you needed? A. He said he would rather pay off a claim.
"Q. Did you discuss what you would need? A.I told him that I would accept ten thousand dollars. He said he would not pay that much.
"Q. Did he tell you what he would do for you? A. He told me he would give me two thousand dollars.
"Q. Did he tell you on what basis he would give that to you? A. To take care of expenses. He said I ...