Goodson v. Texas & P. Ry. Co.

• Decision Date: 19 December 1930
• Docket Number: No. 784.,784.
• Citation: 34 S.W.2d 348
• Parties: GOODSON v. TEXAS & P. RY. CO.
• Court: Texas Court of Appeals

34 S.W.2d 348

GOODSON v. TEXAS & P. RY. CO.

No. 784.

Court of Civil Appeals of Texas. Eastland.

December 19, 1930.

Rehearing Denied January 16, 1931.

Appeal from District Court, Callahan County; M. S. Long, Judge.

Suit by T. F. Goodson against the Texas & Pacific Railway Company. From a judgment on an instructed verdict for defendant, plaintiff appeals.

Affirmed.

Smith & Smith, of Anson, for appellant.

Shropshire & Bankhead, of Weatherford, B. L. Russell, of Baird, and T. D. Gresham, of Dallas, for appellee.

HICKMAN, C. J.

The judgment appealed from was rendered by the trial court on a verdict of the jury returned in obedience to a peremptory instruction in favor of appellee. Appellant's suit was for damages for personal injuries sustained at Putnam, Tex., on August 15, 1927. The appellee, defendant below, among other defenses, besides a general denial, pleaded contributory negligence and an accord and satisfaction by a full settlement and release of all claims growing out of the alleged injuries. Appellant by supplemental petition alleged fraud in the procurement of the release and mental incapacity on his part when he executed same. The present suit is the second one filed by appellant on the alleged cause of action, the first having been dismissed in 1928 for want of prosecution, and the present one having been filed later.

On the issue of accord and satisfaction, the evidence discloses that, on March 27, 1929, the appellee sent to the Citizens' National Bank of Brownwood, Tex., a draft payable to the order of appellant for $275, which draft recited: "In full and complete settlement and payment for personal injuries and damages received at Putnam, Texas, August 15th, 1927, account being struck or coming in contact with train of said The Texas & Pacific Railway Company." Accompanying said draft was a written release, which recited: "In consideration of the sum of Two Hundred Seventy Five and no/100 Dollars, ($275.00) this day paid to me, T. F. Goodson, by The Texas & Pacific Railway Company, I hereby release said company from all claims, demands and causes of action against it which have accrued or may hereafter accrue to me for all injuries and damages of every nature whatsoever received in and resulting from an accident at or near Putnam, Texas, on or about the 15th day of August, 1927, account being struck or coming in contact with train of said The Texas & Pacific Railway Company." The release further recited, in substance, that, to secure settlement and payment of said sum, the appellant relied wholly on his own judgment as to the extent and duration of his injuries, and that no representations or statements about this matter by said company or its representatives or agents influenced him in making the settlement. The draft was indorsed and cashed by appellant and the release executed before two witnesses, who signed same as such. One of these witnesses was Joe J. Boyd, formerly assistant chief of police of the city of Brownwood. Prior to the receipt of said draft appellant solicited the services of Boyd, who was acquainted with certain officials and employees of the railroad company, to assist him in effecting a settlement of his claim. Boyd was in no manner connected with the appellee, but acted solely as a representative of appellant, and, through correspondence, procured an agreement from appellee to pay appellant the sum of $275. The other witness was Clyde McIntosh, cashier of the Citizens' National Bank of Brownwood, who was wholly disinterested and in no manner connected with the railroad company. In procuring the signature to the release he was but...