International & G. N. R. Co. v. Shuford

• Decision Date: 01 June 1904
• Citation: 81 S.W. 1189
• Parties: INTERNATIONAL & G. N. R. CO. v. SHUFORD.
• Court: Texas Court of Appeals

81 S.W. 1189

INTERNATIONAL & G. N. R. CO. v. SHUFORD.

Court of Civil Appeals of Texas.

June 1, 1904.

Appeal from District Court, Hays County; L. W. Moore, Judge.

Action by Mrs. Katie Shuford against the International & Great Northern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

S. R. Fisher and J. H. Tallichet, for appellant. C. L. Bass and W. G. Barber, for appellee.

FISHER, C. J.

This is a suit by the appellee against the railway company to recover damages for personal injuries sustained in a collision when a passenger on one of appellant's trains, and also to cancel a contract of settlement, which purports to be executed in consideration of $250 paid to appellee in satisfaction of all damages sustained, and to release appellant from all liability. Appellant demurred generally and specially to so much of the petition as seeks cancellation, and, for answer, pleaded that the release in question was valid and binding, and was executed by the appellee in full settlement and discharge of all liability of appellant. Verdict and judgment below were in plaintiff's favor for the sum of $4,250, less $250 received by the plaintiff.

Plaintiff, in her petition, as the grounds of cancellation of the release and contract of settlement, alleged that the execution of the same was procured by fraud and undue influence, and trickery of the defendant and its agents, as follows: That, during the few days following the collision, plaintiff was treated for the injuries by a physician named Dupuy, who was in the employ of defendant, and who represented to her that he was her friend, and that he, not only as a physician, but as a friend, would advise with her, and aid her to obtain all damages that were due her by the defendant because of said negligence and carelessness. The plaintiff trusted him, as a physician and friend, to do so, which he knew. That said Dupuy conspired with the claim agent of defendant to induce the plaintiff to accept $250 as full compensation for the damages she sustained, and to execute the release, upon the following representations: That the conspirators falsely represented to plaintiff that her injuries were external, local, and slight, and were practically well, and that $250 was adequate compensation for all damages due by defendant for the injuries she had sustained, knowing that the plaintiff did not and could not know the condition of such injuries; and they falsely represented to her that it was uncertain whether the collision occurred by the carelessness and negligence of defendant, its employés and agents, at the time knowing that the plaintiff did not know whether the said collision was through the negligence of the appellant, and at that time was unable to ascertain that fact. That the plaintiff believed that Dupuy would disclose to her all the material facts known to him, bearing upon the release, which might cause her to decide differently with reference thereto from the way she would decide, were such facts not disclosed to her, which Dupuy well knew. That at no time during the negotiations about the release did Dupuy tell plaintiff, and he concealed and suppressed the fact from her, that no one could determine within a few days after such collision whether it would or would not cause serious injurious consequences to the person of plaintiff; and the conspirators falsely represented to her that the injuries were external, local, and slight, and were practically well, and that $250 was adequate compensation, and the plaintiff at that time did not know and could not know the condition of her injuries. That the representations were material and untrue, and the conspirators made them knowing that they were material and untrue, and intended that the plaintiff should believe them to be true, and be deceived and induced thereby to accept the $250 and execute the release. That, the representations being material and untrue, if the conspirators did not know they were untrue, they made them with a reckless disregard of whether they were true or false, and they were made in order to induce the plaintiff to accept the $250 and execute the release. That the representations were made upon the personal knowledge of the conspirators, knowing that they were untrue, and that the plaintiff believed the representations were true, and was deceived and controlled and induced thereby to execute the release and accept the $250 as full compensation for the injuries sustained. That she executed the release without reading its contents; and, in effect, she alleges that the said representations and statements that her injuries were slight and she was practically well were all untrue, and that the amount of the damages that she did sustain by reason of the negligent collision as aforesaid amounted to $25,000.

The facts in support of the verdict are substantially as follows: On the 16th of March, 1903, the appellee, when a passenger on one of appellant's trains, was seriously and permanently injured, to some extent, as alleged in her petition, by reason of a negligent collision of one of appellant's trains with the one upon which she was a passenger. There is evidence upon which to base the verdict of the jury for the amount found. In fact, there is practically no complaint as the verdict of the jury as to the amount. The last assignment of error in the appellant's brief states that the verdict is excessive. It is not followed up by any proposition or statement calling the attention of the court to any fact contained in the record indicating that the verdict is excessive. And the evidence bearing upon this subject authorizes the conclusion that her injuries at the time that the release was executed, and the representations made that induced its execution, were of a very serious character—much more so than was represented to be the case by the agents of appellant who induced her to execute the release by reason of the false representations, as pleaded. On Monday, the day of the collision, she reached San Antonio, the end of her journey, and, as a result of the injuries sustained, she went to bed, and so remained until the following Friday; and during this time she felt very sick, with pains in her head, neck, and shoulders, side and back. Friday night she left San Antonio, and returned to her parents' home, and was there confined to her bed for nearly two months, during which time she was very sick with high fever, with pains in her head and spine, and suffered from nervousness, and during that time she was treated by physicians, and since the accident she has not been able to work, and continues to suffer as before stated, and there is evidence to the effect that some of her injuries are permanent. These injuries were the proximate result of the negligence of the appellant by reason of the collision in which she was injured. At the time of the accident she was a nurse, and was dependent upon her labor for support, earning $2 a day while so employed. On the day she reached San Antonio, she sent for Dr. Paschal, a physician with whom she was acquainted, who treated her injuries. A Dr. Dupuy, a physician in the employ of appellant, whom the appellee had known for two years, on the day she reached San Antonio, and when she was confined to her bed, without being sent for, visited the appellee, and made an examination of her injuries, in order to ascertain their nature and extent, so as to report her condition to the appellant company; and at this first visit, as a result of his examination, he obtained all the data and information required, upon which to base his report to the railway company, and the subsequent visits made by him were not necessary in order to obtain additional data upon which to base any further report to his employers. It was at this time, which was Monday evening, he stated to appellee that she was not much hurt, and would be up in a few days. Tuesday morning he returned, and again, to some extent, examined into the condition of appellee, and told her she was getting along all right, and would be able to be up in a few days. He again returned Tuesday evening, and inquired how she felt. Appellee replied that she felt sore. At neither of these visits was anything said about any demand or claim of appellee for damages. On Wednesday morning, Dr. Dupuy again, without being invited visited appellee, and asked how she was feeling, to which she replied that she was very sick, and was nervous, and had not been able to sleep. On this occasion he again stated to her that she would soon be better, and would get all right in a few days, and suggested to appellee that she ought to get something from the railway company, and that he thought that the company would be willing to pay a small amount on account of her injuries, and said he would bring to her the appellant's claim agent. During these visits the doctor impressed her with the belief that he visited her in her interest, and said to her that he would act as her friend, and see that she would get something from the railway company. On Wednesday evening, Dupuy, in company with appellant's claim agent (one Griffin), visited appellee, with the purpose of both to effect with her a settlement of her claim or demand against the appellant. At this time Dupuy introduced the claim agent to appellee, who stated that he had come in order to make a settlement with the plaintiff, to which she replied that she was too sick to talk much of anything. Plaintiff at this time did not know the extent of her injuries, nor that they were serious and permanent. The claim agent asked appellee what amount would compensate her for her injuries. She said she did not know, whereupon, in the presence of Dr. Dupuy, he stated that she was not badly hurt; and Dupuy then told her that her injuries were very slight, and he knew she would be up in a few days. She then, acting upon this statement, suggested $500 as compensation. The agent...