Rapid Transit Ry. Co. v. Smith

• Decision Date: 06 April 1905
• Citation: 86 S.W. 322
• Parties: RAPID TRANSIT RY. CO. v. SMITH.
• Court: Texas Supreme Court

86 S.W. 322

RAPID TRANSIT RY. CO. v. SMITH.

Supreme Court of Texas.

April 6, 1905.

Error from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by B. F. Smith against the Rapid Transit Railway Company. From a judgment of the Court of Civil Appeals (82 S. W. 788) affirming a judgment for plaintiff, defendant brings error. Reversed.

W. F. Robertson and E. B. Perkins, for plaintiff in error. R. B. Seay and Richardson & Seay, for defendant in error.

GAINES, C. J.

The defendant in error brought this suit to recover of plaintiff in error damages for personal injuries to his wife alleged to have been caused by the negligence of the company's servants. The defendant corporation, among other things, pleaded in answer to the petition a release. To the answer the plaintiff, by a supplemental petition, replied, in substance, that the release was obtained by fraud, in this: that at the time it was executed the agent of the company who procured the same promised that in consideration of its execution the company would give him employment as a motorman, when they knew at the same time that the plaintiff could not be so employed, and "that the promise was made with intent to defraud the plaintiff." It was also pleaded in the replication that the promise of employment was the sole consideration for the release, that the promise had not been fulfilled, and that therefore there was a failure of consideration. The trial resulted in a verdict and judgment in the plaintiff's favor for $1,000, less the amount paid out by the defendant as the consideration of the release. The cause having been appealed, the judgment was affirmed by the Court of Civil Appeals.

The following is a copy of the release pleaded and proved: "In consideration of the sum of Fifteen ($15.00) dollars (and the assumption of Dr. Gauldin's bill) the receipt of which is hereby acknowledged, I, B. F. Smith do hereby release the Rapid Transit Railway Company from any and all liabilities growing out of a certain accident and injuries sustained by my wife on or about June 8th, 1902, said injuries having been received by reason of a collision between two of the cars of the said Rapid Transit Railway Company upon Commerce Street, Dallas, Texas, upon one of which cars my wife was a passenger. This release includes all injuries sustained whether temporary or permanent, whether developed or hereafter to be developed. It is understood that this release shall be in no wise considered as an admission of liability on the part of said Rapid Transit Railway Company, and I hereby release for myself and my said wife the said Rapid Transit Railway Company from any and all claims of liability whatever. [Signed] B. F. Smith."

Upon the question of the release, the trial court charged the jury as follows: "If you find and believe from the evidence before you that, at the time the written release was signed by the plaintiff, the defendant company, by and through its agent, C. F. Freeman, promised the...