Alenkowsky v. Texas & N. O. Ry. Co.

• Decision Date: 12 October 1916
• Docket Number: (No. 601.)
• Citation: 188 S.W. 956
• Parties: ALENKOWSKY v. TEXAS & N. O. RY. CO.
• Court: Texas Court of Appeals

Page 956

188 S.W. 956

ALENKOWSKY v. TEXAS & N. O. RY. CO.

(No. 601.)

Court of Civil Appeals of Texas. El Paso.

October 12, 1916.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by Ezrel Alenkowsky against the Texas & New Orleans Railway Company. Judgment on peremptory instruction for defendant, and plaintiff appeals. Reversed and remanded.

Graves & Graves, of Houston, for appellant. Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Paul Kayser, all of Houston, for appellee.

HIGGINS, J.

Alenkowsky was an employé of appellee, and on September 7, 1913, while in the discharge of his duties, his left leg was broken about halfway between the knee and ankle. It was alleged that such injuries were caused by appellee's negligence. He was immediately taken to defendant's hospital, and remained there until about February 10, 1914, under the care and treatment of defendant's surgeons, Drs. Knox and E. J. Hamilton. On Dec. 1, 1913, he accepted from the defendant the sum of $600, and in consideration thereof gave a written release of his claim for damages. In avoidance of this release the plaintiff alleged:

"That for the purpose of procuring said release and of inducing plaintiff at that time and under those circumstances to make such nominal settlement, he was taken by defendant railway company's claim agent, one ____ Davis, to its chief surgeon, Dr. R. W. Knox, and to his assistant, Dr. E. J. Hamilton, who together had charge of said hospital, and of plaintiff and the medical treatment of him, and then and there procured from each of them, in plaintiff's presence, the statement and representation that plaintiff was not permanently nor seriously hurt, and that the bones in his leg had properly knitted and united together, that the leg was not hurt, and within two months' time would be as good and as strong as it ever was, and that he was on the safe side and could safely make said nominal settlement, and that it was a good settlement for his injuries; that said claim agent used said physicians and their said statements and representations, repeating and reciting same to plaintiff, and then and there, upon the basis thereof and faith therein, induced him to make said settlement and to sign said release; that he relied upon said statements and representations as to the state and condition of his injuries and believed them to be true, and would not have agreed to said settlement, nor signed said release if he had not so believed and relied upon the same. But plaintiff now shows to the court that said release is not valid nor binding upon him, and that he was misled and overreached to his injury in so agreeing to and executing same, for the reason that said statements and representations were not true, that the bones in his leg had not then properly knitted and united together, nor have they yet, nor will they ever do so, nor was or is said leg unhurt or as good as ever, but the same was then, and is now, permanently and incurably crushed, injured, and impaired, and leaves him for life deformed, a cripple, and unable to do any constant or heavy work, and that its condition and the character of his other injuries are in fact as is alleged in paragraphs 8 and 9 of this petition."

The cause was tried before a jury, and upon the conclusion of plaintiff's evidence a peremptory instruction was given in favor of defendant upon the theory that an issue had not been raised with respect to the validity of the release. In accordance with this instruction a verdict was returned and judgment rendered in defendant's favor, and the plaintiff prosecutes this appeal therefrom.

Plaintiff testified:

"After my injury I was taken to the Southern Pacific Hospital in the ambulance. I didn't ask anybody to send me to the hospital. The hospital belongs to the shops. I stayed there five and one-half months, and was treated by Dr. Hamilton and Dr. Knox, who are the railroad physicians. I didn't ask for them. They used to come to the hospital every day while I was there. Both bones in my leg were fractured, my left leg, and there was a laceration of the knee on my right leg. No other doctors ever treated me. * * * The railroad company paid me $600 for this accident. On the 1st of December, 1913, Mr. Davis, the claim agent, offered me $500, and suggested that I call in some friend of mine to consider this matter. I called in Mr. Ditch, who came, and we went up to Mr. Davis' office. I said that my leg was still hurting me, and I could not use it. Mr. Davis suggested that we go down to the doctor's office, two floors below his office. Dr. Knox examined my leg, and told me that in two months my leg would be in perfect condition as if it was never hurt; that at the time it was still raw, but at the end of two months I would not know I was ever hurt. I went back to Mr. Davis' office with Mr. Ditch, and Mr. Davis then offered me $500 on the strength of the doctor's statement that my leg was in good condition. When I still complained that my leg was not well, Mr. Davis said that he would give me another $100, but I didn't consent to do that, because I wanted to make sure that my limb would be well. I then left the office with Mr. Ditch, and coming out we met Dr. Hamilton. Mr. Ditch then asked Dr. Hamilton for advice whether to accept this money — particularly, if the leg would be well in the future, then would he advise him to accept the money. Dr. Hamilton stated that this leg is in good shape, and that it was only for a short while that it would hurt any, that after that period he would not know that he was ever hurt, and advised him to make the settlement. This was the same day the settlement was made. I went up to Mr. Davis'...