Texas Midland R. R. v. Wilson , 1924 Tex. App. LEXIS 1147 ( 1924 )

WILLSON, C. J.

(after stating the facts as above). [1] As we construe the testimony, it did not warrant a finding that' appellee was not bound by the release he executed on apy of the grounds he relied upon, and therefore we think the trial court should have instructed the jury to find in appellant’s favor.

One of the grounds relied upon was that a part of the consideration to appellee for the release was the promise of appellant’s claim agent, Patton, never performed, appellee charged, that he should have the “gravel pit job.” There was no evidence adduced of any such promise by Patton. But it did appear without dispute in the testimony that appel-lee applied to appellant for that job November 21, 1921, that appellant awarded same to him November 22, 1921, and that the award ihad not been revoked January 30, 1922, the day appellee executed the release.

Another one of the grounds was that appellee was induced to execute the release by his reliance upon the truth of a statement Dr. Munday made to him when he went to the doctor for treatment about six weeks after he was injured. The statement was that appellee “had a pretty bad knee,” but that he (the doctor) could have cured it and had him (appellee) at work if he “had come to him at first.” The statement was made about three months before appellee executed the release, and, reasonably, could not have induced him to execute it. '

The other ground relied upon as entitling appellee to avoid the release was the statement made to him by Dr. Maxwell, set out above. Whether that statement, if it appeared that appellant was bound by it, when considered in connection with the other testimony in the case, would support a finding that appellee was not bound by the release, need not be determined; for we think it did not so appear. Dr. Maxwell was not employed by appellant.* He was not in any sense its agent. He was chosen by appel-lee and employed by him to treat him. All appellant had to do with it was to pay for the service the doctor rendered.

The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.

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