Gibson v. Employers' Liability Assurance Corp.
| Decision Date | 27 June 1939 |
| Docket Number | No. 5413.,5413. |
| Parties | GIBSON v. EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LIMITED. |
| Court | Texas Court of Appeals |
Wm. V. Brown, of Texarkana, for plaintiff in error.
R. T. Bailey, of Dallas, and Otto Atchley, of Texarkana, for defendant in error.
Floyd Gibson, plaintiff below, and the Employers' Liability Assurance Corporation, Limited, the insurance carrier and defendant below, entered into a compromise settlement agreement of his claim for compensation for injuries he sustained during the course of his employment with the Southern Ice & Utilities Company, the insured. Under this agreement Gibson received from defendant $361 in full settlement of his claim, in addition to weekly benefits amounting to $252 previously paid him.
Plaintiff pleaded all the necessary allegations in this, an original suit, to support a recovery for compensation under the Texas Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., but in his prayer sought only to set aside and hold for naught the above settlement agreement on grounds of alleged fraud and fraudulent representations; and the suit thus narrows itself down to a common-law action for the rescission and cancellation of a contract on the grounds alleged. Commercial Casualty Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, 89 S.W.2d 1116; Wood v. Traders' & General Ins. Co., Tex.Civ.App., 82 S.W.2d 421.
Plaintiff alleged (and introduced in evidence) the settlement agreement had been made, and for grounds to set same aside pleaded: "That at the time of the settlement of said claim and the execution of said agreement that he was under the care and treatment of Dr. S. A. Collom, Jr., and Dr. Perry Priest, who were the physicians of the defendant and were the physicians designated by the defendant for treating this plaintiff; that he was caused to execute said agreement through the fraudulent representations and inducements by the said Dr. Collom and Dr. Priest in this: —That at the time the said compromise settlement was offered to plaintiff that he discussed the same with said doctors who advised him to make said settlement; who told him he would be soon over his present condition, would be able to do light work and that he was suffering from no broken bones and no permanent injuries; that believing the representations made to him to be true, relying upon them, and acting in good faith, made this settlement."
Plaintiff further alleged that said representations were false; that instead of improving he has grown worse; that he was then and is now suffering from a fracture of the left transverse process of the first lumbar; of which condition of himself he learned for the first time in December, 1935; that these injuries have caused him to suffer a temporary total disability of 49 weeks and a 75% partial permanent disability of 252 weeks at a weekly compensation wage scale of $12.60; all of which he was entitled to at the time the settlement was executed. Plaintiff alleged the sums theretofore paid him had been spent and offered to give credit for same on any judgment recovered by him.
Defendant entered general demurrer and general denial, and further pleaded an estoppel, in that plaintiff had taken a non-suit in the United States District Court of the Eastern District of Texas, after the case had there been developed and before a verdict had been returned.
Plaintiff did not offer any testimony that Dr. Priest made any representations to him, or that he acted upon any statement made to him by Dr. Priest. Plaintiff did introduce evidence in support of his allegations in regard to alleged fraudulent representations made by Dr. Collom and in support of his other allegations. Defendant did not offer any evidence. When plaintiff rested his case the court granted defendant's motion for an instructed verdict in its favor.
From the pleadings quoted, plaintiff asserts that Dr. Collom misled him by reasons of the misrepresentations. It is apparent that plaintiff seeks to charge defendant with this act of Dr. Collom as it is alleged that this physician was defendant's employee and had been employed to treat plaintiff; that is, an agent of defendant. The disposition of this appeal turns upon whether Dr. Collom was the agent of the defendant at the time. In passing upon this allegation of agency we shall assume that the representations made to plaintiff by Dr....
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