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

• Decision Date: 22 February 1908
• Citation: 108 S.W. 502
• Parties: GULF, C. & S. F. RY. CO. v. HUYETT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

108 S.W. 502

GULF, C. & S. F. RY. CO. v. HUYETT.^*

Court of Civil Appeals of Texas.

February 22, 1908.

Rehearing Denied March 14, 1908.

Appeal from District Court, Cooke County; Clem B. Potter, Judge.

Action by Bert Huyett against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. Terry and Garnett & Eldridge, for appellant. Stuart & Bell, for appellee.

SPEER, J.

Appellee recovered a judgment against appellant for damages for personal injuries alleged to be the result of the negligence of appellant in operating a pile driver at a point on its line in Oklahoma. The case has been once before appealed to this court and to the Supreme Court, and a reference to the opinions upon such appeals will sufficiently disclose the issues involved. G., C. & S. F. Ry. Co. v. Huyett, 89 S. W. 1118, 14 Tex. Ct. Rep. 124, and Id., 92 S. W. 454, 5 L. R. A. (N. S.) 669, 15 Tex. Ct. Rep. 502.

In reversing the case before, the Supreme Court used the following language: "And it may be that, if the claim agent in effecting the settlement knew and took advantage of the state of plaintiff's mind caused by deception practiced by the doctor, the result would be the same"—that is, the release pleaded as a defense would be affected by the physician's representations. Following this suggestion, the trial court on the last trial instructed the jury as follows: "If you find from the evidence that Dr. Scott, prior to the execution of said release, represented to the plaintiff that his injury was not so great as it really was, and if the plaintiff believed said representations to be true and relied on the same, and if you further believe that the defendant's agent, Cox, knew of said representations, and that the plaintiff relied on the same, and took advantage of said representations, and the plaintiff's confidence therein to settle with the plaintiff for the sum less than compensation for his injury, then the release is not binding on the plaintiff." All questions presented on this appeal that were not disposed of adversely to appellant on the former appeal relate to the issue thus submitted. We are of opinion that these assignments must be overruled on the ground that the evidence, though circumstantial in some respects, is sufficient to support the verdict in appellee's favor, as the following excerpts from the testimony will disclose:

Appellee testified: "I told Dr. White for either him or Dr. Scott to wire Mr. Lee, the claim agent at Galveston, that I would like to see him. It was after this that Dr. Scott examined me. Dr. Scott examined me after I was expecting the claim agent, because I had told Dr. White to telegraph for or wire Mr. Lee, or send him word. Mr. Cox, the claim agent, then came to see me first on Friday, the 16th, and I then told him that I would not take less than $2,000 by way of compromise. The next time I talked to Mr. Cox was Tuesday morning after that Friday evening. In the meantime Dr. Scott made the examination of me. The examination made by Dr. Scott and the statement that he (Dr. Scott) made to me were between the time Cox was there the first time, when I told him I would not take less than $2,000, and the time Cox was there the last time, when I agreed to take the $250. The reason I came down from $2,000 on Friday to the $250 on Tuesday was on account of Dr. Scott's statement to me. I would not have settled for the $250 but for the statements that Dr. Scott made to me. * * * I did not talk to him (Cox) but a few minutes. I did not accept any such settlement for time. After that I saw Dr. Scott at the Gulf, Colorado & Santa Fé Hospital. I think it was Friday night that Mr. Cox came to see me. Dr. Scott came to see me next day. That was Saturday. I think it was the next day after Mr. Cox came to see me. It was October 17, 1903, that Dr. Scott came to see me. I saw Mr. Cox again one or two days after Dr. Scott examined me. It was Monday. He came there to the hospital. He raised the question of settlement again. He came there with Dr. White in the hack. Dr. White is...