"This suit was instituted by the appellee to recover damages alleged to have been sustained on account of the negligence of the Missouri, Kansas & Texas Railway Company of Texas on or about the 19th day of August, 1902, and resulted in a judgment for appellee in the sum of $1,965.
"Among other defenses, the appellant alleged as follows:
"`(5) This defendant says that, at the time of the alleged accident to the said plaintiff, it had in force among its employés a rule and regulation, which was well known to all of its employés, by virtue of which, if an employé was injured, he was not allowed to return to work for this defendant unless he settled his claim for such injury, or signed a release to said defendant for such injury; that, after the plaintiff was injured, he, the said plaintiff, in order to return to work and secure employment from this defendant, for
and in consideration of re-employment by this defendant, by written release duly executed, he, the said plaintiff, discharged this defendant from all liability on account of said alleged accident, and, after the execution of said release, he, the said plaintiff, was employed by this defendant and worked for this defendant for ____ days, for which he was paid, and on, to wit, the ____ day of ____, A. D. 1902, voluntarily left the service of this defendant. Wherefore this defendant says that whatever claim that this plaintiff may have had against this defendant has been fully adjusted and settled.'
"By supplemental petition the plaintiff, under oath, made the following plea:
"`(2) Specially replying to that part of said answer which attempts to set up a release by plaintiff of defendant's liability to plaintiff for his said injuries, plaintiff admits that he signed a paper of some kind; that he signed the same under the following circumstances: That, in about fifteen or twenty days after he was hurt, thinking that he had sufficiently recovered to return to work, he went back to resume his work, when Mr. Allen, defendant's foreman, told plaintiff that he could not return to work unless he signed a release, and told plaintiff to go and see Mr. Brundet. Plaintiff says that he went to see Mr. Brundet, defendant's agent, and told him that Mr. Allen said that he would have to sign a release before he could return to work; that said ____ handed plaintiff a paper, and told him to sign it, which he did; that he never read the same, nor was it read to him by any one; that he did not know what it was, nor what it contained. Plaintiff states that defendant did not pay him anything for signing same; that, if he signed a release discharging defendant of liability to him, the same was and is wholly without consideration. Plaintiff further states that he had no knowledge of the fact that defendant had a rule requiring its employés to sign a release discharging defendant from liability before they could return to work after getting hurt, until defendant filed its answer herein. Plaintiff further states that he attempted to go to work, but his head hurt him so badly he could not work, and he has not been able to work since he was hurt.'
"There was evidence in the case which would support the finding of the jury that the plaintiff was injured in the sum found by the jury. There is a conflict of evidence as to the date when the injury was received— the plaintiff and his witnesses testifying that the accident occurred on the 19th of August, 1902; and the defendant's witnesses, that he was hurt on the night of July 7th.
"Appellant offered in evidence the following release:
"`The Missouri, Kansas & Texas Railway Company of Texas.
"`Whereas, on or prior to the 8th day of July, 1902, I, the undersigned J. W. Smith, (Col) of Dallas, was an employé of the Missouri, Kansas & Texas Railway Company of Texas, and as such employé was engaged as coal heaver.
"`Whereas, on or about the 8th day of July, 1902, aforesaid, I the undersigned received personal injuries whilst in the service of said company at or near Dallas, caused as follows: struck by handle of coal bucket for which such injuries and damage resulting to me therefrom I claim to have a demand against the said Missouri, Kansas & Texas Railway Company of Texas, and
"`Whereas, said claim and demand has been compromised and adjusted by and between myself and said company.
"`Now therefore, in consideration of re-employment by said company, for such time only as may be satisfactory to said company, I do hereby acknowledge full settlement, payment and satisfaction of all claims and demands against said company for the injuries and damages aforesaid, and do hereby fully release and discharge said company from any and all claims of whatever kind or character I may have on account of or arising from said injuries.
"`Witness my hand, this 14th day of July, 1902, J. W. Smith.'
"The same conflict in evidence occurs with reference to the date when this release was executed. The evidence, however, shows that the release was signed after the plaintiff was injured—whether the date of the accident was in July, as claimed by appellant, or in August, as claimed by appellee.
"There is evidence which would have warranted the jury in finding that after the plaintiff was injured he sought re-employment with appellant, and that the agent of appellant told him that he could not work for appellant again unless he signed a release, and that appellee thereupon went to another agent of appellant, and, for the purpose of obtaining re-employment, executed the release above set out, and that he then proceeded to work for appellant for some time, and received wages therefor. There is also evidence which tends to show that there was a rule of appellant which prevented employés who had been injured from being re-employed, unless a release was executed by them for all damages sustained by them, and that appellee was informed of said rule before he executed said release and obtained said re-employment.
"Among other instructions, the court charged the jury as follows: `You are instructed that the instrument offered in evidence as a release to defendant of all liability on account of the accident in question, was without consideration; and you will therefore not consider the same in arriving at your verdict.'
"Under a similar state of facts, the Court of Civil Appeals for the Fifth District, in the case of Carroll v. M., K. & T. Railway Co., 69 S. W. 1004, decided that the contract was not without consideration. We entertain some doubt as to the correctness of this decision
and for said reason, and for the further reason that this case will have to be reversed for other errors in the record, we therefore certify the following question:
"Did the court err, under the facts stated, in...
