Fort Worth & R. G. Ry. Co. v. Pickens

• Decision Date: 11 June 1941
• Docket Number: No. 8968.,8968.
• Citation: 153 S.W.2d 252
• Parties: FORT WORTH & R. G. RY. CO. v. PICKENS.
• Court: Texas Court of Appeals

Page 252

153 S.W.2d 252

FORT WORTH & R. G. RY. CO. v. PICKENS.

No. 8968.

Court of Civil Appeals of Texas. Austin.

June 11, 1941.

Rehearing Denied July 2, 1941.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Action for personal injuries by Alton Pickens against the Fort Worth & Rio Grande Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

E. G. Nahler and A. P. Stewart, both of St. Louis, Mo., Allen & Gambill, of Fort Worth, and J. Edward Johnson and McCartney & McCartney, all of Brownwood, for appellant.

Callaway & Callaway, of Brownwood, for appellee.

BLAIR, Justice.

Appellee, Alton Pickens, sued appellant, the Fort Worth and Rio Grande Railway Company, to recover damages for injuries received when a motor handcar on which he was riding collided with an automobile at a highway crossing. The jury trial on special issues resulted in a verdict and judgment for appellee for $1,800, and also for cancellation of a release of his claim, executed by appellee in consideration of the payment of $100 to him by appellant.

Appellant contends that if appellee ever had a cause of action for his injuries, it was settled and released in writing on April 10, 1937, in consideration of appellant's paying him $100; and that in consequence the judgment of the trial court should be reversed and judgment here rendered for it.

At the time of his injury appellee was employed by appellant as a section hand, a member of a section crew whose duty it was to inspect and repair appellant's tracks and roadbed over its line of railway, including the place where the accident occurred. At the time of the accident appellee and the section crew had been on an inspection tour and were returning on a motor driven handcar, which was being operated at the time by the foreman of the section crew, and which collided at a public road crossing with an automobile driven by C. L. Allcorn; appellee being thrown from the handcar by the impact of the collision, sustaining the injuries complained of.

After the collision appellee was taken in the Allcorn automobile to the Medical Arts Hospital, where he was examined and treated by Dr. Allen, who told appellee to return the following day for further examination and treatment. Thereafter Dr. Allen engaged in a series of examinations and treatments of appellee, and in the course of time had him twice examined and treated at the Harris Clinic in Fort Worth by physicians and surgeons of that clinic. While still complaining of his injuries appellee executed the release in consideration of the payment of $100 to him by appellant, which release recited the full and complete settlement and compromise of the claim for damages arising out of the accident in suit.

Appellee also offered proof tending to show that he executed the release in reliance upon the representations of Dr. Allen that his injuries were not serious and that he would be completely recovered and ready to return to work within two or three weeks; and in reliance upon the doctor's representations that appellee should accept the sum offered him in compromise of his claim by the claim agent of appellant.

In answer to special issues submitted, the jury found: (1) That when Dr. Allen advised appellee that "in his opinion his injuries were slight and that he would soon recover," Dr. Allen "was acting with the intention to induce plaintiff (appellee) to settle with and release defendant (appellant)" from liability; (2) that "in treating and advising the plaintiff," Dr. Allen "was acting under the control and direction of the Fort Worth and Rio Grande Railway Company"; (3) that the advice and opinion of Dr. Allen that the injuries of appellee were slight and that he would soon recover were in fact untrue; and (4) that appellee relied and acted upon the advice and opinion of Dr. Allen in accepting the compromise and in executing the release in question.

Appellant contends that there was no evidence showing that in the examination and treatment of appellee Dr. Allen was the agent of appellant. Dr. Allen testified that he was a salaried employe of an organization called the Frisco Employes Hospital Association, which was maintained by funds collected from employes of the Frisco lines. Appellant railway company is a part of the Frisco lines or system. Dr. Allen further testified that he was not an employe of the Fort Worth and Rio Grande Railway Company, but that he was commonly known as the railroad doctor; that he did not know if the hospital association was a subsidiary of the railroad corporation, but that the reason for his treatment of appellee was because he worked for the appellant railway company. Other witnesses of appellant designated Dr. Allen as the "company physician," testifying that he had acted in that capacity for sometime. The jury found that Dr. Allen, "in treating and advising the plaintiff, Alton Pickens, was acting under the control and direction of the Fort Worth and Rio Grande Railway Company." The evidence detailed raised this jury question, and its answer to the special issue submitted is controlling. Missouri, K. & T. Ry. Co. v. Haven, Tex.Civ. App., 200 S.W. 1152, writ refused; Texas Midland Ry. Co. v. Wilson, Tex.Civ.App., 263 S.W. 1109, 1112.

Appellant further insists that the release is binding upon appellee despite the representations made by Dr. Allen in the premises, under the rule stated in the case of Texas Midland Ry. Co. v. Wilson, supra, wherein it was held that "representations by the releasee's physician as to future results of the injuries, such as the time necessary for or likelihood of recovery, if made in good faith, are mere expressions of opinion and not representations of past or present facts, and, though they prove not to be true, will not afford ground for avoiding a release."

We think the rule applicable here is that representations of an existing fact or condition by releasee's physician, which if relied upon by releasor to his injury, constitutes sufficient grounds for avoidance, if such representations are proved to be untrue in fact. St. Louis S. W. Ry. Co. v. Thomas, Tex.Civ.App., 244 S.W. 839; Alenkowsky v. Texas & N. O. Ry. Co., Tex.Civ.App., 188 S.W. 956; Houston &amp T. C. Ry. Co. v. Brown, Tex.Civ.App., 69 S.W. 651. And while it is true that an estimate of the time required for recovery of an injury may be properly considered a matter of opinion, representations of the physician who has examined the injuries of a person as to the nature and extent of then existing injuries are treated as representations as to existing facts, though they may be coupled with expressions of opinion as to the length of time which may be required for recovery from the injuries. El Paso Elec. Ry. Co. v. Cowan, Tex.Civ. App., 248 S.W. 442; Cowan v. El Paso Electric R. Co., Tex.Com.App., 271 S.W. 79; Traders & Gen. Ins. Co. v. Cole, Tex. Civ.App., 108 S.W.2d 864; El Paso & S. W. Co. v. Kramer, Tex.Civ.App., 141 S.W. 122; 36 Tex.Jur., 809, 810; and Gulf, C. & S. F. R. Co. v. Huyett, 99 Tex. 630, 92 S.W. 454, 5 L.R.A.,N.S., 669. And cases seem to hold that where representations are made by the releasee's physician concerning the nature, extent or degree of existing injuries for the purpose of inducing the injured party to settle his claim against the principal, the injured person may avoid the release, if he relied upon such representations and if they in fact proved to be false; and the fact that the representations were innocently made is no barrier to avoidance of the release. See also Missouri, K. & T. Ry. Co. v. Maples, Tex.Civ.App., 162 S.W. 426; Missouri, K. & T. Ry. Co. v. Reno, Tex.Civ.App., 146 S.W. 207, writ refused; Gulf, C. & S. F. Ry. Co. v. Huyett, 49 Tex.Civ.App. 395, 108 S.W. 502, writ dismissed; Russell v. Industrial Transportation Co., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 51 A.L.R. 1.

It is not contended in the instant case that the representations made by Dr. Allen were intentionally untrue, and insofar as representations as to the time which would be required for recovery are involved, the rule announced in Texas Midland Ry. Co. v. Wilson, supra, would be applicable. However, there is testimony in the instant case which we believe raised a jury question as to whether the representations were made by the doctor concerning the extent or degree of existing injuries. The wife of appellee testified that after the claim agent had conferred with appellee regarding settlement of his claim against the company, appellee told the claim agent that he wanted to talk with Dr. Allen and take another examination and see what Dr. Allen said before he made up his mind. Appellee did go talk with Dr. Allen, who told him he would be all right and told him he would be able to work in two or three weeks; and advised appellee to take the $50 offered him by the claim agent in settlement of his injuries. Appellee testified that the doctor told him he could go back to work, and that he could see no reason why he was not well. Appellee also offered in evidence two certificates executed by Dr. Allen, discharging him as being well and able to resume work. The contentions of appellant that there was no jury question raised, and that under the undisputed evidence there was not sufficient ground upon which to set aside the release, are overruled.

The next contention of appellant is that this action is governed by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and that as a matter of law appellee assumed the risk giving rise to the injuries of which he complains, and that therefore he was not entitled to recovery. We regard the evidence as being uncontroverted on the issue of the applicability of the Federal Act. The evidence showed that the termini of the lines of the Fort Worth and Rio Grande Railway Company were located within the boundaries of Texas, but that its lines were engaged in the transportation of freight under contracts of through...