St. Louis Southwestern Ry. Co. of Texas v. Thomas

^* Writ of error dismissed for want of jurisdiction January 17, 1923. No question is made in this court about the right of appellee to recover as he did in the court below if he was not bound by the release set out in the statement above. The contention here is that the testimony did not warrant a finding that he was not so bound, and that the trial court therefore erred when he refused appellant's request that he instruct the jury to return a verdict in its favor. We think the contention should be overruled.

It may be conceded that the consideration (one dollar) to appellee for the release was sufficient to support it, and that appellee therefore was not entitled to have it set aside on the ground alone that it was without a consideration the law recognized. Leath v. Refining Co. (Tex.Civ.App.)223 S.W. 1022; Johnson v. Russell (Tex.Civ.App.) 220 S.W. 352; McKay v. Tally (Tex.Civ.App.) 220 S.W. 167. It may also be conceded that it conclusively appeared, as appellant insists it did, (1) that Dr. Daniels believed the statement he made to appellee to be true, (2) that it was made on another occasion than the one when Haley and Graves negotiated the settlement with appellee, and (3) that it was not made to induce appellee to make the settlement and execute the release. But it does not follow that the trial court therefore erred as charged; for the statement of Doctor Daniels that appellee's "jaw was not broken" was as to an existing fact (Alenkowsky v. Ry. Co. [Tex. Civ. App.] 188 S.W. 956; R. Co. v. Haven [Tex. Civ. App.] 200 S.W. 1152,) and there was testimony to support findings made by the jury (1) that the statement was not true, (2) that appellee believed it to be true and was induced by that belief to execute the release, and (3) that Haley or Graves at the time they negotiated the settlement knew that Dr. Daniels had made the statement to appellee, knew that appellee believed it to be true, and knew that the inducement to appellee to make the settlement and execute the release was his belief that the statement was true.

There is no doubt if the negotiations resulting in the settlement had been between Dr. Daniels and appellee and the statement in question had been made by Dr. Daniels to induce appellee to act as he did, the latter would have been entitled to the relief he obtained on showing that the statement was false, that he believed it to be true, and that he was induced by such belief to make the settlement. Such a right in appellee would not have been affected by the fact that the statement, if made in the negotiations was not made on the particular occasion when appellee executed the release, nor by the fact that Dr. Daniels believed it to be true when he made it. R. Co. v. Brown (Tex.Civ.App.) 69 S.W. 651; Ry. Co. v. Reno (Tex.Civ.App.) 146 S.W. 207; Ry. Co. v. Neill (Tex.Civ.App.)159 S.W. 1180; Ry. Co. v. Maples (Tex.Civ.App.) 162 S.W. 426.

We see no reason why the rule applicable to facts like those suggested should not be applied here. Haley and Graves knew at the time they negotiated the settlement that Dr. Daniels had made the statement; they assured appellee that the statement was a true one; they knew appellee believed it to be true; and they knew that such belief was the inducement to him to agree to the settlement. Ry. Co. v. Huyett, 99 Tex. 630,92 S.W. 454, 5 L.R.A. (N.S.) 669; Id., 49 Tex. Civ. App. 395, 108 S.W. 502; Alenkowsky v. R. Co. (Tex.Civ.App.) 188 S.W. 956; Boles v. Aldridge,107 Tex. 209, 175 S.W. 1052. We think the jury had a right to conclude from those facts, as they did, that Haley and Graves took advantage of Dr. Daniels' statement and of appellee's reliance on same and settled with appellee "for a sum less than fair compensation for his injury." In the Huyett Case the court (49 Tex. Civ. App. 395, 108 S.W. 502) approved an instruction to the jury as follows:

"If you find from the evidence that Dr. Scott, prior to the execution of said release, represented to the plaintiff that his injury was not so great as it really was, and if plaintiff believed said representations to be true and relied on the same, and if you further believe that the defendant's agent, Cox, knew of said representations, and that the plaintiff relied on the same, and took advantage of said representations, and the plaintiff's confidence therein to settle with the plaintiff for the sum less than compensation for his injury, then the release is not binding on the plaintiff."

The judgment is affirmed.