Galveston, H. & S. A. Ry. Co. v. Cade

• Decision Date: 17 January 1906
• Citation: 93 S.W. 124
• Parties: GALVESTON, H & S. A. RY. CO. v. CADE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

93 S.W. 124

GALVESTON, H & S. A. RY. CO. v. CADE.^*

Court of Civil Appeals of Texas.

January 17, 1906.

Rehearing Denied February 14, 1906.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by James B. Cade against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Newton & Werd, W. B. Teagarden, and Baker, Botts, Parker & Garwood, for appellant. Perry J. Lewis and H. C. Carter, for appellee.

JAMES, C. J.

Appellee sued for damages, claiming injury to his knee on two separate occasions, alleging negligence of appellant's employés as the cause; he being at the time a fireman in appellant's employment. He recovered a verdict for $10,000, less a deduction. The pleadings will be referred to in the course of the opinion when necessary.

The first assignment is that the court erred in refusing to give a peremptory instruction for defendant. Three propositions are submitted as the grounds for asking this instruction. Plaintiff was shown to have executed on November 7, 1900, a release, in consideration of $700 paid to him by defendant, which recited in substance that it was a full discharge of all claims, demands, and causes of action against defendant which has or may accrue to plaintiff for all damages, of whatsoever nature, received in or resulting from an accident at San Antonio on the 6th day of March, 1900, as follows, to wit: "While working as fireman, I was injured; the nature and extent of such injury not being definitely known at this time, it is expressly understood and agreed that the above sum is paid me by said company, and accepted by me in full settlement for injury to my left knee, and for all claims for injuries, disabilities, and damages, which may hereafter develop in consequence of said accident and injury to my knee, as well as for those injuries, disabilities, and damages now known and apparent. No promise of employment nor other agreement not herein expressed has been made by the company." The defendant pleaded this release, and its execution and the receipt of the money consideration was shown, and the first proposition is that because plaintiff did not tender or offer to return the $700 before the suit, and did not, as shown by the pleadings and the undisputed evidence, make a continuing tender and deposit in court of said sum and interest, but refused to do so, he was as a matter of law not entitled to recover, and the peremptory instruction should therefore have been given. The original petition did not refer to the release and it was first pleaded by defendant. In the first supplemental petition plaintiff pleaded that the release was obtained from him by misrepresentation and fraud of the defendant, etc., and tendered the $700, and interest. In the second supplemental petition, filed in lieu of the above, plaintiff set forth the facts fully concerning the said alleged fraud and misrepresentation and tendered to the defendant the sum of $700 with interest. Plaintiff admitted in his testimony that he had read the release, and signed it, having first asked a question about the clause with which the instrument concluded relative to promise of employment, which the claim agent said he had no authority to scratch out.

The above proposition, and the second one, which is that plaintiff was estopped, as a matter of law, from disputing the terms of the release, are based on what is involved in the foregoing facts. The third proposition is that plaintiff did not disavow the contract promptly or within a reasonable time, and did not make an effort within a reasonable time to restore the consideration to appellant, but on the contrary kept and used a part of the consideration after discovery of the alleged fraud, and has never tendered to appellant any part of it. And his acts and conduct, therefore, constitute a ratification and estoppel against him as a matter of law. The money was never deposited in court, but it appears that plaintiff's pleadings expressed a tender of it, and it appears also that on the first trial of this cause appellee's attorney offered in open court to deliver to appellant's attorney the $700, and interest. This was also done at the recent trial. In both instances appellant's attorneys declined to receive it for want of authority to do so, but requested its deposit in the registry of the court, which appellee's attorneys refused to do. We believe the third proposition cannot be successfully maintained in this character of case. It is our opinion that where there is, or can be, no question, in the particular case, of rights of innocent third persons intervening, or of the defendant being prejudiced in some way by a delay on the part of the plaintiff in disavowing the contract sought to be rescinded, it is not essential that plaintiff signify his repudiation immediately or in a reasonable time, or at any time short of the time prescribed by the statute of limitations. In this case there was no property involved and no possibility of third persons acquiring rights which would be affected by plaintiff's repudiation of the contract, nor can we possibly perceive how the defendant, if plaintiff had valid grounds upon which to repudiate the contract for fraud practiced by defendant upon him in its procurement, could have any equitable reason to complain of plaintiff's delay in disaffirming the contract, or in instituting his suit. The statute of limitations allows a plaintiff a certain period within which to bring his suit, and his right to assert his cause of action within that period is not affected by delay, unless for some reason recognized by courts of equity, his conduct in delaying ought in good conscience to work an estoppel. Newman v. Newman (Mo. Sup.) 54 S. W. 23. No such consideration seems to inhere in a case like the present one, and certainly not on any facts appearing in this case. The delay in the present case, though considerable, could not, as a matter of law, be pronounced unreasonable. The witnesses and testimony generally seem to have been procurable as well when the action was tried as they would have been at any previous time. If circumstances were developed tending to show that defendant was placed at a disadvantage by the delay, an issue might have existed as to whether or not plaintiff's laches should bar his suit. It will be seen, however, that defendant had the benefit of a submission of the issue of unreasonable delay, and has no ground for complaint. As to plaintiff not having paid or offered to pay the $700, and interest, before the suit, or not having deposited it with the court, we think the point not well taken. All that is necessary we think in an action of the kind is to express a tender or a willingness in the pleadings to allow the same against any judgment that may be rendered. If plaintiff should recover and the same be deducted from the recovery, defendant would be as well off as if the money had been on deposit. If plaintiff should fail to recover, the money if deposited would not go to defendant. From defendant's standpoint, in either event, no useful purpose would be served by the payment of the money into court. And such a rule would work a hardship on a plaintiff, who had not the money to deposit, and would amount to a denial of relief in a meritorious case, and at the same time the application of such a rule would be of no practical benefit to the defendant. Besides, it was in the power of the court to protect the defendant in its rights as to said sum in the case, if the instrument is annulled, and the judgment here does this. Railway v. Shuford (Tex. Civ. App.) 81 S. W. 1190, in which case the Supreme Court denied a writ of error.

As to the second proposition. The ground for annulling the release was that the inducement, which caused plaintiff to execute it, was the fact that plaintiff was induced to believe by certain false and fraudulent representations made to him by defendant's physicians and claim agent, that he had recovered and was able to continue his work as fireman; the same being made to him for the purpose of deceiving and inveigling him into signing, he having confidence in said physicians and fully believed what they said, and, relying thereon, believed he was well and able to work as fireman, when in fact his injury was permanent and permanently incapacitated him from filling the position, which said physicians and claim agent knew or ought to have known when they made the representations and procured the release. The point made is that plaintiff having read the release and understood its provisions, he was estopped to question the recitations, viz.: "While working as fireman, I was injured. The nature and extent of such injury not being definitely known at this time, it is expressly understood and agreed that the above sum is paid me by said company, and accepted by me in full settlement for injury to my left knee and for all claims for injuries, disabilities, and damages, which may hereafter develop in consequence of said accident and injury to my knee, as well as for those injuries, disabilities, and damages, now known and apparent." Appellant's brief states: "This contract was entered into with due deliberation several months after the accident, and after his knee had entirely healed, and all suffering, pain, and disease had disappeared. Nothing remained but the dislocated cartilage, which could have been instantly removed by a simple and painless operation as appellant's evidence showed." The point made is well indicated by the statement in the brief as follows: "It could not be material what the doctor and claim agent said to him about the condition of his knee, because in his contract he himself in effect says: "I will take your $700, and release you from liability, whatever the future results may be, whether as you predict or not. In this matter I am acting upon the uncertainty of future developments on my...