Panhandle & Santa Fe Ry. Co. v. O'Neal
| Decision Date | 17 June 1938 |
| Docket Number | No. 1817.,1817. |
| Citation | 119 S.W.2d 1077 |
| Parties | PANHANDLE & SANTA FE RY. CO. v. O'NEAL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Fisher County; W. R. Chapman, Judge.
Action by John M. O'Neal against the Panhandle & Santa Fe Railway Company for injuries sustained while plaintiff was employed as a section hand on defendant's railroad. From judgment for plaintiff, defendant appeals.
Reversed and judgment rendered for defendant.
Mays & Perkins, of Sweetwater, for appellant.
Smith & Smith, of Anson, for appellee.
O'Neal sued the Railway Company for damages alleged to have been sustained by him as the result of an injury suffered while engaged in repairing the defendant's railway track while O'Neal was employed as a section hand. The Railway Company pleaded as a complete defense to the cause of action asserted that O'Neal, for a valuable consideration, had released defendant from any claim for damages arising out of the alleged injury. O'Neal answered that the release was not valid because procured by the fraud of defendant's claim agent. O'Neal alleged that he, when injured, had an insurance policy in effect, the premiums for which were deducted from his pay by the Railway Company. "That on the 28th day of August, 1934, the defendant's claim agent * * * Mr. Taylor * * * came to plaintiff's room in the sanitarium and after the plaintiff had been under treatment of Dr. Rush, defendant's physician and surgeon in charge of plaintiff's case, from the 15th of August until the 28th of August, and said Mr. Taylor * * * told the plaintiff: `That he had just had a conversation with Dr. Rush about plaintiff's condition and that Dr. Rush advised him * * * that the plaintiff was not injured but that he was a very sick man and that the defendant would not owe the plaintiff anything because he wasn't injured but that plaintiff would be entitled to a part of his insurance and that he (* * * Taylor) had come to pay the plaintiff $25.00 of his insurance money.'" Plaintiff alleged he had confidence in Dr. Rush and Mr. Taylor "and plaintiff believed and relied implicitly and wholly upon what the defendant's claim agent, Mr. Taylor, had told him and believed Dr. Rush had made such statement to Mr. Taylor." That Taylor gave him a check for $25 and had him sign "some kind of paper." That "plaintiff relied upon the fact and believed that it was a part payment on the insurance which he was carrying and did on the same day secure the assistance of some one * * * to cash said check for him * * * but plaintiff says that he never at any time read the contents of said check or draft, but relied wholly upon what Taylor had told him that it was a part of his insurance."
With reference to the visit of Mr. Taylor to plaintiff and the statements made by Taylor, relied on by plaintiff as grounds for setting aside the release, plaintiff testified:
The release executed by plaintiff and delivered to Taylor was as follows:
The statement in the face of the release "I have read the above release and fully understand the same" was written therein by plaintiff.
The check given by Taylor to plaintiff reads as follows:
Pay to the Order of John M. O'Neal ...... $25.00 Twenty-Five and no/100 ........... Dollars
In payment of any and all injuries sustained at or near Longworth, Texas, on or about July 14, 1934.
To J. N. Freeman, Treasurer
Panhandle & Santa Fe Railway Company
Amarillo, Texas
(Signed) B. P. Taylor."
It was indorsed and cashed by plaintiff after defendant's claim agent left.
We will attempt to analyze the statement testified to by plaintiff and depended on by him as a false and fraudulent statement sufficient to justify cancellation of the release. Plaintiff testified: "He (Taylor) told me that he had been talking to Dr. Rush, had a consultation with Dr. Rush, and that Dr. Rush said that I wasn't an injured man, but that I was a very sick man." There was no evidence that Taylor's statement was false. Taylor had talked with Dr. Rush concerning plaintiff and the doctor told Taylor that plaintiff was sick but not injured. Plaintiff testified that he believed Taylor's statement "as to what Dr. Rush had told him"; that he was induced by said statement to execute the release. Dr. Rush was not shown to be a representative or physician of the defendant.
Taylor's statement to O'Neal as to what Dr. Rush told him (and on which statement alone O'Neal testified he relied in executing the release) was shown by the undisputed evidence to be true. Moreover, Dr. Rush's statement to Taylor of his opinion as to the cause of plaintiff's injury is not assailed as being other than an expression of an honest opinion. Nor is it shown to have been made in contemplation of a settlement. There is no allegation that any statement by Dr. Rush was false. The statement by Taylor as to what Dr. Rush said being the statement, according to plaintiff's testimony, that plaintiff relied on and that induced him to execute the release and that statement being true, and not made by defendant's physician, and not shown to have been made by Dr. Rush in contemplation of a settlement and not alleged to be false, is certainly no support for cancellation of the release. Wilson v. Jones, Tex.Com.App., 45 S.W.2d 572, 573; 36 Tex.Jur. 812; El Paso & Southwestern Co. v. Kramer, Tex.Civ.App., 141 S.W. 122, writ referred.
Let us consider the balance of plaintiff's testimony as to Taylor's alleged false statement: We have been unable to find in the record any evidence that plaintiff believed said statement and relied thereon in making settlement and executing the release. We think Taylor's statement to plaintiff that plaintiff was not entitled to recover damages from defendant was a mere statement of his opinion as to the law, and, even if believed and relied on, was insufficient as a ground for cancellation of the release. Taylor was an adjuster for a Railroad Company, not a lawyer, nor an insurance man, and this was known to plaintiff. The presumption, violent as it may be, is that they both knew the law. The statement by the adjuster, Taylor, that his company was not liable, or that plaintiff was not entitled to recover, being an expression of a legal opinion, and no fiduciary relation being shown, was insufficient to justify cancellation of the release. National Fire Ins. Co. v. Plummer, Tex.Civ. App., 228 S.W. 250, 252; Edge v. Business Men's Assur. Co. of America, Tex.Civ. App., 15 S.W.2d 44, 45.
In Wilson v. Jones, Tex.Com.App., 45 S.W.2d 572, 573, Justice Sharp announced the established rule as to...
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