Gulf, C. & S. F. Ry. Co. v. Gordon

• Court: Texas Supreme Court
• Writing for the Court: Stayton
• Citation: Gulf, C. & S. F. Ry. Co. v. Gordon, 7 S.W. 695, 70 Tex. 80 (Tex. 1888)
• Decision Date: 24 February 1888
• Parties: GULF, C. & S. F. RY. CO. v. GORDON.

7 S.W. 695

GULF, C. & S. F. RY. CO. v. GORDON.

Supreme Court of Texas.

February 24, 1888.

Appeal from district court, Austin county; H. FEICHMULLER, Judge.

Action by C. C. Gordon to recover for personal injuries sustained while acting as an engineer on the railway of defendant, the Gulf, Colorado & Santa Fe Railway Company. Judgment for plaintiff. Defendant appeals.

Chesley & Haggerty, for appellant. Davis & Davidson, F. D. Minor, and Bell & Shelburne, for appellee.

STAYTON, J.

The appellee, while in the employment of the appellant as a locomotive engineer, was injured in the derailment of the locomotive which he was operating, and this action was brought to recover damages. It is alleged that the injuries resulted from defects in the railway track and locomotive, and damages actual to the amount of $25,000, and exemplary for a like sum, were claimed. There was judgment in favor of the appellee. The defendant pleaded matters, in bar of the action, which it is claimed operate as an accord and satisfaction of the claim now asserted, and as an estoppel. The substance of those pleas are thus stated in brief of counsel for appellant: "That shortly after plaintiff received his injuries, and while he was still suffering therefrom, he applied to Webster Snyder, the general manager of defendant's road, and who had general charge of its business management, for pecuniary assistance; and said Snyder consented, in behalf of defendant, and promised, in substance, to render him such assistance as he and his family might need, and to see him through until he was sound, this promise being made upon the express representation and assurance by plaintiff that he had no intention of instituting suit against defendant company for damages on account of his injuries, and repeated assurances that no such suit would be brought; and that, but for these assurances upon the part of plaintiff, no such promise would have been made, or assistance given, of all of which plaintiff was duly advised before receiving such assistance. That, in pursuance of his promise, Mr. Snyder on January 13, 1886, at defendant's expense, had plaintiff taken from Sealy to Galveston, and there placed in a private hospital in charge of skillful physicians, for medical and surgical treatment, where he remained at defendant's expense for a period of about seven months, when he left the hospital and returned to Sealy on his own accord, and contrary to the advice of his physicians, who assured him that, if he would remain in the hospital under treatment for a short time longer, he would be fully restored. It is also alleged that plaintiff left the hospital without defendant's fault, and that had he remained there, as desired, he would have been fully restored. It is also alleged that about ten days before this suit was instituted, plaintiff was in Galveston, and called upon Mr. Snyder, and desired an agreement in writing that defendant company would take care of him, which Mr. Snyder declined upon the ground that he did not recognize any legal liability of the company to him, and that what had been done for him was out of sympathy for his condition, and with the express understanding that he would not put defendant company to the annoyance and expense of a suit, but that he (Snyder) intended to keep his promise to see him through until he was sound; and plaintiff expressed himself satisfied to accept said Snyder's promise in the matter, and then asked for and received from him a further sum of $100, in pursuance of said promise, and as a result of their conversation, which would not have been given but for plaintiff's assurance that he would accept said Snyder's promise for continued assistance, and that he should bring no suit. It is charged that this suit was filed about ten days after the above conversation and receipt of the $100, without any further notice or conversation with said Snyder, or any other person representing defendant, and but for the filing of this suit defendant would have performed all of its said promises made in behalf of plaintiff. It is also alleged that defendant in pursuance of its said promise to plaintiff, had expended in his behalf, and for his account, $1,947.40, a bill of particulars of which was made a part of the answer, showing that, at different times from January 13 to November 8 the same year, defendant had paid plaintiff $1,000 in cash, and had expended in his behalf $947.40 by way of hospital expenses, medicines, clothing, etc., for himself and family." In the brief for appellee it is conceded that the substance of the plea is correctly stated if the following quotations from it be added: "That on November 8, 1886, plaintiff again went from Sealy to Galveston, and called upon Mr. Snyder, the general manager of defendant road, and suggested that the time would soon expire in which he could sue, and desired him (Snyder) to give him a written agreement that the defendant company would take care of him; which proposition the said Snyder declined upon the ground that he did not recognize any legal liability of defendant to him, and told him if he wanted to sue, he could do so, but that what he had done for him was out of sympathy for his condition."

To constitute an accord and satisfaction it must appear that the appellee agreed to receive something in place or stead of the unliquidated sum which he conceived himself entitled to receive from the appellant on account of his injuries, and that this had been paid; and there can be no pretense that any promise made by the company's agent was intended to bind him personally, and thus operate as a payment, as it has been held that the promise of a third person would. It cannot be claimed that any express agreement was alleged, but it is urged that an implied agreement not to sue is raised by the facts stated, and that in consideration of this the appellee received money, and assistance having a money value. There can be no agreement, express or implied, when both parties have no intention to make it, or where one has, but the other has not. The plea states that, when application for assistance was made, it was given on the declaration of the plaintiff that he had no intention to institute a suit to enforce a claim for damages against the company, but there is no averment that the appellee declared he would not enforce his claim if the appellant would render him the assistance desired, nor that this was made a condition upon which alone assistance would be given. Without requiring such a stipulation the plea states that the appellant "consented and promised, in substance, to render him such assistance as he and his family might need, and to see him through until he was sound." It is alleged that subsequently the appellee made known to the company that the time would soon expire in which he could maintain an action, and that he then asked that the company should make a contract "to take care of him, which proposition said Snyder declined upon the ground that he did not recognize any legal liability of defendant company to him." He then asked for so much as the company alleged it had before that time consented to give, and it then denied any liability, — which must be understood to mean any liability arising out of the fact from which resulted the injury, or existing by force of a former agreement, which it is contended ought to be implied. It would be difficult to find any reasonable ground on which to base an implied contract, when it clearly appears that the person asserting such a contract, when called upon to make it express, and to put it in enduring and legal form, declined to do so on the ground that no facts existed which would entitle the other party to such rights as the contract asked to be implied would give. It would be equally difficult to find ground on which to base an implied contract not to sue, when the right to sue was recognized by the party asking the implication, and when the consideration on which the asserted contract is founded is declared to have been delivered or given through mere sympathy, and not as a matter of right under a contract sought to be established by implication, even though this active exercise of sympathy may have been under the belief that the person to whom it was extended would, on account of it, forego some right, and even though this belief of the agent of the company may have been induced by a declaration of an...