International-Great Northern R. Co. v. Sifuentes

• Court: Texas Court of Appeals
• Writing for the Court: Stanford
• Citation: International-Great Northern R. Co. v. Sifuentes, 6 S.W.2d 192 (Tex. App. 1928)
• Decision Date: 26 April 1928
• Docket Number: (No. 654.)
• Parties: INTERNATIONAL-GREAT NORTHERN R. CO. v. SIFUENTES.

6 S.W.2d 192

INTERNATIONAL-GREAT NORTHERN R. CO. v. SIFUENTES.

(No. 654.)

Court of Civil Appeals of Texas. Waco.

April 26, 1928.

Rehearing Denied May 17, 1928.

Appeal from District Court, Brazos County; W. C. Davis, Judge.

Suit by Abelardo Sifuentes against the International-Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Andrews, Streetman, Logue & Mobley and Morris, Sewell & Morris, all of Houston, and F. L. Henderson, of Bryan, for appellant.

J. G. Minkert, of Bryan, for appellee.

STANFORD, J.

This suit was by appellee, alleging, in substance, that about October 5, 1926, he was in the employ of appellant as a laborer in the capacity of a section hand, and that on said date he was ordered by the foreman of said gang, under whom he worked, to assist other employees in moving a heavy iron roller in the city of Bryan, and that such roller, while being moved by appellee and two other laborers, turned over, and appellee's foot was caught and crushed, to his damage in the sum of $1,000. Appellant for answer, in addition to a general demurrer, special exception, and general denial, pleaded a release executed by appellee in the usual form, releasing appellant from all damages arising by reason of said injury; and further specially pleaded that at the time said injuries were received, both appellant and appellee were engaged in interstate commerce, and that appellee's injury was the direct and proximate result of damages assumed by him, and that said injuries were the result of appellee's contributory negligence, and that such injuries were the result of an unavoidable accident. Appellee, in a supplemental petition, alleged the contract of settlement was not binding upon him, for the reason that he was deceived and misled by the statements of the attending physician at the hospital, who treated him, and other agents of appellant, to the effect that he was well, or would be in a little while, etc., and that he replied upon said false statements, and was thereby induced to sign the release, etc. Appellee further denied that he and appellant were engaged in interstate commerce at the time of the injury, and denied that said jury was the result of an unavoidable accident.

In response to special issues, the jury found:

"(1) The defendant * * * was guilty of negligence in instructing and ordering the plaintiff to move said roller under the conditions and circumstances surrounding its being moved.

"(2) That said negligence was the proximate cause of the injury received by plaintiff.

"(3) The plaintiff was misinformed and misled as to the condition of his foot by the surgeon in charge of the hospital and by the claim agent of defendant at Palestine, or either of them, at the time he signed and executed the release offered in evidence.

"(4) The plaintiff was induced to sign and execute said release by reason of statements made to him by the surgeon in charge of the hospital and by the claim agent of defendant at Palestine, or either of them.

"(5) That $500 will fairly and reasonably compensate the plaintiff for the injuries sustained.

"(6) Plaintiff's injury was not caused or occasioned by an unavoidable accident."

"Special issue No. 1 by defendant: Plaintiff was not guilty of contributory negligence on the occasion in question."

On these findings and such additional findings as the pleadings and evidence justified, the court entered judgment for appellee, and appellant presents the record here for review, upon one proposition, to wit, that it was the duty of the trial court to peremptorily instruct the jury to return a verdict in favor of appellant, assigning three reasons, however, why such instruction should have been given, to wit: (1) Because the evidence was wholly insufficient to avoid the release executed by appellee; (2) because the evidence fails to show appellant was guilty of any actionable negligence resulting in appellee's alleged injuries; (3) because the undisputed evidence showed that appellee and appellant, at the time of the injury, were engaged in interstate commerce, and that appellee assumed the risk, etc. We will dispose of these questions in the order stated.

There is no contention that the facts pleaded, if found to be true, were not sufficient to require the release to be set aside. There is no objection to special issues 3 and 4 submitting this phase of the case to the jury. There is no contention that the findings of the jury to said issues did not require said release to be set aside. If there was any evidence raising these issues, then it was the duty of the court to submit same to the jury, and to refuse to do so and to instruct a verdict for appellant would have been error. So the question here involved is, Was there any evidence tending to show that the appellee was misinformed and misled as to the condition of his foot by the hospital surgeon and by the claim agent at the time he executed the release, and was there any evidence tending to show that appellee was induced to execute the release by reason of statements made to him by said parties? The evidence discloses: That appellee, while in the employ of appellant, was, on October 5, 1926, injured by having his foot crushed. On October 6, 1926, by authority of appellant, he was admitted to its hospital. That an X-ray picture of his foot revealed that two bones therein were broken. That he remained in said hospital from October 6th until November 15th, when he was discharged by the doctor in charge thereof, and who had been treating him. This doctor testified:

"When he was well enough to be discharged, I told him his foot was well enough for him to go to work. That was on November 15th. I told him that at the hospital. I made out discharge papers and gave to him and sent him to the claim department. I sent him down there in a car."

Appellee testified:

"At the time I signed this release the doctor told me my foot was all right and that it needed a little time to get completely well; I believed the doctor and acted upon his recommendation. I signed the release because I thought I was well. They had an American gentleman there as an interpreter there at that time. The interpreter told me I would get well in a little while."

The evidence shows that the appellee was admitted to the hospital only with the consent of the appellant company, and that the doctor who treated appellee was in charge of said hospital, which was known as the I-G-N Hospital at Palestine. The claim agent's office was only about one-half mile from the hospital. Appellee could not speak English. The doctor evidently knew this, and had so informed the claim agent. The doctor, on telling appellee that his foot was well, or would be in a day or so, gave him his discharge from the hospital, did not permit him to go where he pleased, but put him in a car,...