Harris v. Sanderson, 2437.

• Decision Date: 28 January 1944
• Docket Number: No. 2437.,2437.
• Citation: 178 S.W.2d 315
• Parties: HARRIS et al. v. SANDERSON.
• Court: Texas Court of Appeals

178 S.W.2d 315

HARRIS et al. v. SANDERSON.

No. 2437.

Court of Civil Appeals of Texas. Eastland.

January 28, 1944.

Rehearing Denied February 25, 1944.

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

Suit by J. H. Harris and others against H. E. Sanderson for the death of Elsa Ray Harris Gonzales when struck by one of defendant's cabs and for cancellation or avoidance of a release of such cause of action. Judgment for defendant, and plaintiffs appeal.

Judgment affirmed.

Letcher D. King, of Abilene, for appellants.

Scarborough, Yates & Scarborough, of Abilene, for appellee.

FUNDERBURK, Justice.

J. H. Harris, Lillie Harris and Alexander James Gonzales brought this suit against H. E. Sanderson (doing business in the name of Safety Cab Company) to recover damages for the death of Elsa Ray Harris Gonzales. Deceased was riding a bicycle along a highway between Camp Barkeley and the City of Abilene when struck and fatally injured by one of defendant's cabs approaching from behind and driven by an employee. The cause of action alleged by plaintiffs consists of a number of different grounds of recovery, each embracing an alleged negligent act or omission as constituting a proximate cause of the death of said Elsa Ray Harris Gonzales.

In their petition plaintiffs alleged that they had released said cause of action for damages, but further pleaded a cause of action for the cancellation, or avoidance, of such release.

The trial was by jury, but when plaintiffs had rested defendant also rested and filed a motion for an instructed verdict on the ground that plaintiffs had wholly failed to establish any negligence on the part of defendant's cab driver, and for the further reason there had been no showing of actionable fraud on the part of defendant or his agents, and hence the release constituted a bar to the cause of action. In response to this motion, the court rendered judgment for the defendant, from which plaintiffs have appealed.¹

The alleged errors of the trial court, upon which the appeal is predicated, are set forth in nine points. Points 1 to 6, inclusive, relate to the question of negligence and are immaterial, if Point 7, relating to the question of fraud as avoiding the release of the cause of action should not be sustained. We shall, therefore, give consideration to the seventh and eighth points first. The ninth point is more specifically covered in the other points, and, therefore, requires no separate independent consideration.

Both the seventh and eighth points relate to the cause of action for cancellation of the release. Of these we shall notice the eighth point first. The payment of $260 for the release was made by check payable to the order of plaintiffs and Kiker-Knight Mortuary and Dr. L. J. Picard. After endorsement of the check by all the payees, the money was actually paid over to Kiker-Knight Mortuary and Dr. L. J. Picard. This was done with the consent of plaintiffs, one or more of whom were legally liable to those receiving the money. In our opinion, as a matter of law, the $260 was paid to plaintiffs in the sense here material, that is to say, that its payment, as aforesaid, was a consideration for the release and in equity required to be accounted for.

The seventh point presents a question of considerable difficulty. The point is: "The trial court erred in withdrawing the case from the jury and not submitting the same to the jury because the pleadings and the evidence clearly raise the question of actionable fraud on the part of appellee in securing the release and said question and issue should have been submitted to the jury." In the statement of the case we have already said that a cause of action for cancellation, or avoidance, of the release was alleged. A preliminary question is whether the representation as an element of the alleged fraud, was a representation of fact, or only the expression of an opinion. In their petition, plaintiffs alleged that "* * * the defendant knew that his representation as to his legal liability based on said facts, and the lawyer's representation based on said facts, were false * * * Defendant knew that such representations made by himself and by the attorney were false and fraudulent * * *." Under these allegations it was immaterial to the statement of a cause of action whether the alleged representation was one of fact or of opinion.

It may be conceded that there was evidence sufficient to raise issues of fact upon each and all the elements of actionable fraud as pleaded, unless it was (1) that the representation was one of fact upon which plaintiffs had the right to rely in contradistinction to one of mere opinion upon which they had no right to rely, and (2) that defendant and/or his said attorney knew that the representation (whether one of fact or opinion) was false.

In our opinion, there was no evidence to raise an issue upon the alleged fact that the defendant and/or his attorney knew that the representation was false and was, therefore, made with fraudulent intent. As we understand there is no contention that such was the case. The inquiry is, therefore, narrowed to a consideration of whether the representation was one of fact or of mere opinion, and the legal effect of its being the one or the other.

All the testimony regarding the representation was given by the three plaintiffs.

J. H. Harris testified to the effect that the defendant Sanderson, accompanied by another man, who Sanderson said was his lawyer, stated to plaintiffs that they did not owe anything—were not obligated at all, but to prevent hard feelings were willing to pay the "sanitarium, cemetery and doctor bill;" that they had talked the matter over with witnesses and with one another and decided, as far as they were concerned, they were not "obligated anything to us at all"—"didn't owe nothing."

Mrs. J. H. Harris testified in effect that Mr. Bob Sanderson and a man he brought with him came into the room where all the plaintiffs were present and "introduced himself to us and also turned and introduced us to the other fellow and said that was his lawyer"; and that then Sanderson "told us what he would do; that he would cover all of the expenses, including the hospital bill, doctor bill and the funeral home services and also the cemetery, digging of the grave and spot for the grave." Asked, "What did the lawyer say, if anything?", she said Sanderson turned to him and said: "`I have told them the truth'", and he said "`Yes, sir', and that he was experienced on it and that he [Sanderson] had told us the truth", and added: "`I think it is mighty nice in Mr. Sanders [Sanderson] giving this to you as a gift.'" Asked what "did Mr. Sanderson say he had done?" she answered: "He said he had talked to the witnesses and also visited the scene of the accident * * * [and] he said he didn't owe us anything by law." She testified that neither Sanderson nor the lawyer told them any of the details or what they found as a result of talking to the witnesses and investigating the accident at the scene.

A. J. Gonzales testified to the effect that Sanderson with a man, who Sanderson said was a lawyer, came to the Harris place and said he came over there to discuss the accident with plaintiffs; that Sanderson said: "He was sorry about the accident, but to keep hard feelings down he would pay the hospital bill, the doctor bill, funeral expenses, and pay the grave digger." Asked, "Did he make any statement in regard to his liability about owing you all anything?" he answered, "Well, he said he didn't owe us anything * * * but to keep down hard feelings he was willing to pay" the things above enumerated, and in addition a cemetery lot. Questioned whether Sanderson asked the lawyer anything, he answered: "He asked the lawyer if he was right about that—he said: `I don't owe these people anything?' and he said, `No', * * that he thought Mr. Sanderson had been very kind to us." That the lawyer said: "`As a matter of law' he said `he didn't owe us a dern thing'." That both Sanderson and the lawyer said that. Asked again what the lawyer said at the conference, he answered: "He [Sanderson] said [to the lawyer] was he right under the law that he didn't owe us a cent?, he said that he was right * * * that Mr. Sanderson was being very nice to us by letting us have that money."

"Q. The other man with Mr. Sanderson being a lawyer, you believed he was telling you what the law really was in regard to it? A. Yes, Sir. * * * I felt like he owed me some to begin with, but after the lawyer explained it to me I didn't.

"Q. What explaining did he do? A. He said under the law he didn't owe us anything.

"Q. Did he tell you why? A. No, he didn't.

"Q. Did you ask why? A. No, I didn't.

"Q. Did Mr. and Mrs. Harris ask why? A. No, they didn't * * * the only thing they said was according to the law that they didn't owe me a cent."

It is believed that the foregoing is substantially all the evidence showing the nature of the representation in question and upon which the existence of any cause of action for the cancellation or avoidance of the release depends. Stated briefly, according to the evidence Sanderson, backed up by his attorney, represented that defendant was not liable to plaintiff for any damages resulting in the death of Elsa Ray Harris Gonzales. However positively asserted, it was, in our opinion, necessarily the statement of an opinion or belief.

The question posed may be stated thus: may the assertion of an opinion by a defendant to a plaintiff that he is not liable for damages growing out of a particular transaction, absent the assertion of any of the facts of such transaction, and absent any evidence to show that such opinion was not held in good faith, sufficient, in connection with other essential elements of fraud, to constitute actionable fraud?

In Hartford Accident, etc., Co. v. Graves, Tex.Civ.App., 148 S.W.2d 859, 860, after careful consideration based upon authorities...