#### Sun Oil Company v. Hedge.

Opinion delivered April 18, 1927.

*738 T. M. Clifford and Norwood £ Alley, for appellant.

Lake, Lake £ Carlton, for appellee.

Kirby, J.,

(after stating the facts). It is earnestly insisted by appellant that the court erred in not giving its instruction No. 1, directing the jury to return a verdict in its favor. It is true, as appellant contends, that plaintiff did not plead fraud, misrepresentations or mistake in the procurement of the release, -which appellee admitted that he signed voluntarily and understanding its effect, about four months after he had been discharged from the- hospital after treatment for the injury, and resumed work. It was not necessary, however, for plaintiff to file a reply alleging that the release was given under a mistake of fact as to his condition, brought about by the misrepresentations of the physician that had treated him, at appellant’s instance, at the time of his discharge from the hospital. The answer setting up the release as a discharge., from liability did not relate to a counterclaim or set-off, and is deemed controverted, in legal contemplation, as though by direct denial of the allegation or an avoidance of its effect, by such a statement of its procurement as was proved. Section 1231, C. & M. Digest.

This court has frequently held that a release executed by an injured party, relying upon the mistaken opinion of the physician of the party responsible for the injury that it was slight and temporary, and not permanent, is not (binding upon the party making it. St. Louis, I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; St. Louis, I. M. & S. R. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052; St. Louis, I. M. & S. R. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187; Griffin v. St. Louis, I. M. & S. R. Co., 121 Ark. 433, 181 S. W. 278; C. R. I. & P. Ry. Co. v. Smith, 128 Ark. 233, 193 S. W. 791; and Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24.

This release was executed more than four months after plaintiff was discharged from the hospital, and without any representations whatever made by appellant *739to appellee, at the time of its execution, relating to his condition and injury; but the jury apparently believed that appellee relied upon the statement made by the physician employed to treat him, at the time of his discharge from the hospital, that his injury was only temporary and not serious and permanent, and also that the serious condition which developed, necessitating the operation in 1925, was the result of it, notwithstanding the majority of the experts testified that such condition could not have resulted from an outside injury, and was caused from some infection. One physician, however, stated that it might have resulted from such an injury, and appellee testified that it did, and the evidence cannot be said to be undisputed, and the court did not err in refusing to direct a verdict.

No error was committed in the giving of instruction No. 2 complained of. It does not assume that Dr. Nei-heuss was an agent of the appellant, as is contended, but leaves to the determination of the jury the question of whether the appellee had been sent by appellant company, after his injury, to the hospital of Dr. Neiheuss for treatment, and also the question of whether or not the physician made to him the untrue representations that his injury was slight and temporary, and but for reliance upon which the release would not have been executed.

It is true that Dr. Neiheuss conducted an independent hospital, but treated, at the appellant’s instance, some of the persons injured in' its service, and the appellee, by its express direction, as the undisputed testimony shows.

Appellant next contends that the court erred in giving plaintiff’s requested instruction No. 3. Only a general objection was made to the giving of said instruction, however, and, if appellant had desired that it should have included the question of comparative negligence or for diminution of the amount of damages on account of the alleged contributory negligence of plaintiff, it should have made such specific objection thereto, or have asked a correct instruction including such phase of the law.

*740It is obvious, too, that the court, in instruction No. 2, given on its own motion, intended to instruct the jury that the plaintiff assumed all risk incident to his employment, instead of the defendant, as stated, but a specific objection would have doubtless resulted in the correction of this instruction, which would not have been misunderstood, anyway, it being apparent that the word defendant was inadvertently used instead of plaintiff. Under the law the servant does not assume the risk of injury from the negligence of his fellow-servants, which was unknown to him, and the danger of which he could not appreciate, and nothing had occurred, as shown by the undisputed testimony herein, in the conduct of appellee’s helper.before the falling of the pipe, to indicate that he was- not discharging and would not discharge the duty incumbent upon him, which appellee had the right to assume that he would do. C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15; Bruce v. Yax, 135 Ark. 480, 215 S. W. 265.

Assumption of risk is an affirmative defense, and the burden of proving it rests upon the defendant, unless it is shown by plaintiff’s testimony. Central Coal & Coke Co. v. Burns, 140 Ark. 147, 215 S. W. 265.

No error was committed in refusing to give appellant ’ist requested instruction No. 4, this question being sufficiently covered and submitted by instruction No. 2, given at plaintiff’s request, and No.' 3, at the request of defendant, and the court’s instruction that the jury should consider all instructions together and as a whole. Then, too, the instruction is not an accurate statement of the law, under the circumstances of this case, since fraud and misrepresentation on the part of the defendant, its servants and employees, was not necessary to be shown in the procurement of the release in order to avoid it, but only the condition as disclosed in said instruction No. 2, given, resulting from reliance upon representations honestly made by appellant’s'physician, to whom appel-lee was sent for treatment, and relied upon as being true *741by appellee when making the release, and which later proved to be untrue.

There was no testimony upon which to base appellant’s requested instruction No. 5, refused, and, if it could be regarded, in effect, an instruction on contributory negligence, it was not a correct declaration, since contributory negligence would not bar the servant’s right of recovery, but only require the diminution of damages by the jury in proportion to the amount of negligence attributable to the injured employee, and no error was committed in refusing to give it. Section 7145, C. & M. Digest.

We find no prejudicial error in the record, and the judgment is affirmed.