Berry v. Guyer
| Decision Date | 28 June 1972 |
| Docket Number | No. 657,657 |
| Citation | 482 S.W.2d 719 |
| Parties | John Thomas BERRY, Appellant, v. Trellis Mitchell GUYER, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
J. D. Davis, Jerry D. Patchen, Davis & Patchen, Houston, for appellant.
Ralph E. Gustafson, J. W. Patten, Stafford & Patten, Houston, for appellee.
This suit involves the effectiveness of an alleged release of a claim for personal injuries allegedly sustained by John Thomas Berry on November 8, 1970, in Harris County, Texas.
Berry filed suit against Trellis Mitchell Guyer on December 11, 1970, alleging negligence and praying for damages in the sum of $9,500.00. Guyer answered on February 2, 1971, and denied the allegations. At the time of the collision, Berry was driving his fiancee's vehicle and was told by her that he would be required to sign the draft, and that it was made payable to the order of Josie Miller, the fiancee, and John J. Berry in the sum of $203.00. Mrs. Miller claimed that the insurance company wanted to pay her for damages to her car, and Berry stated by affidavit that he did not understand that the effect of his signing the draft would in any manner release the insurance company from its obligation to pay damages for his personal injuries. On the back of the draft sent to Mrs. Miller and Berry is a release as follows:
'RELEASE
By the acceptance and endorsement of this draft it is agreed that said draft is in full and final settlement of all liability and claims against the person, firm or corporation covered under the terms of the policy as an insured and/or the UNITED STATES FIDELITY AND GUARANTY COMPANY as insurer because of Personal injuries or damage to property resulting from an accident which occurred on or about the date stated on the face hereof.' (Emphasis added)
The bank was given written notice also not to cash the draft unless the release was signed by the person to whom payable, without modification, and that endorsement of 'ALL' payees was required. A claim number was referred to on the draft, but no summary judgment evidence appears in that regard. The draft was endorsed and the release consequently was signed by John J. Berry and Josie Miller. Berry's middle initial was a simple error.
On January 20, 1972, the trial court after a hearing entered summary judgment in favor of defendant, Guyer. Appeal has been duly perfected by Berry as appellant.
The construction of a release is governed by the general rules relating to construction of contracts, and an effort will primarily be made to ascertain and give effect to the intention of the parties as of the time a release was executed. Mutual Fire & Auto. Ins. Co. v. Green, 235 S.W.2d 739, 742 (Tex.Civ.App.--Fort Worth 1950, no writ); 50 Tex.Jur.2d Release Sec. 23, pp. 31, 32 (1963). Moreover, the rule that causes of...
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