Slade v. Phelps

• Decision Date: 30 October 1969
• Docket Number: No. 439,439
• Citation: 446 S.W.2d 931
• Parties: Mary SLADE, Appellant, v. Donald Edwin PHELPS et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 931

446 S.W.2d 931

Mary SLADE, Appellant, v. Donald Edwin PHELPS et al., Appellees.

No. 439.

Court of Civil Appeals of Texas.

Tyler.

Oct. 30, 1969.

Rehearing Denied Nov. 20, 1969.

Splawn, Maner & Nelson, Robert White Gauss, Lubbock, for appellant.

Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellees.

DUNAGAN, Chief Justice.

This is an appeal from a summary judgment granted the defendants below. Claude Otho Gary and Mary Slade, a widow, brought suit in the 99th District Court of Lubbock County, Texas, against Donald Edwin Phelps and Pat Mills, d/b/a Pat Mills Plumbing Company, for alleged personal injuries and property damage resulting from a vehicle collision in Lubbock, Texas, on March 18, 1967.

Appellees (defendants below) filed their motion for summary judgment. After severing the cause of action of Claude Otho Gary and that of Mary Slade, the trial court granted appellees' motion for summary judgment in the suit of Mary Slade, on the ground that the cause of action attempted to be sued upon by Mary Slade had been discharged by written release executed by Mary Slade for valuable consideration paid to her on March 22, 1967. From this judgment, appellant has appealed.

In their motion for summary judgment, appellees allege that the appellant had signed a binding release based on a valuable consideration, which release extinguished any claim that she might have against the appellees.

The appellant (plaintiff below) answered appellees' motion for summary judgment wherein she alleged, among other things, no consideration or an inadequate consideration; false representations by the adjuster; and no meeting of the minds of the parties.

Appellant has brought forward three points of error in which she asserts that the trial court erred in granting appellees' motion for summary judgment on the ground that there was a binding release executed by the appellant, because there exists a question of fact as to whether or not there was a true meeting of the minds of the appellant and the appellees' insurance adjuster.

In her brief the appellant states that the question for this court to determine is: 'was there a binding contract, or, more properly, did the Defendant prove that there existed no material fact as to the existence or non-existence of a binding contract.'

The motion for summary judgment was submitted on the pleadings and the deposition of the appellant, Mary Slade.

It is shown that Mrs. Slade on March 22, 1967, for the consideration of the sum of $75.00 signed a release discharging the appellees 'from any and all claims, demands, damages, actions, causes of action or suits at law or in equity of whatsoever kind or nature,' resulting from the accident which occurred on or about March 18, 1967, at or near Lubbock, Texas.

Mrs. Slade testified that a man who she knew was an insurance man, upon her executing the release, gave her a check in the sum of $75.00, which he told her would cover her medical bills. The record does not reveal the identity of the man or in what capacity or on whose behalf he was acting. It is presumed he was an insurance adjuster. Appellant in her brief refers to him as such, which statement is unchallenged by the appellees. Therefore, we accept it as correct. Rule 419, Texas Rules of Civil Procedure. She did not read the release prior to signing it. Immediately thereafter, she read it and after doing so, she decided that the $75.00 might not be enough and she requested the return of the release and he refused to do so. At the time of trial she had not cashed the check, which at that time was in the possession of her lawyer.

Mrs. Slade also testified that immediately after the accident, she was carried to a Lubbock hospital where she remained for one or two hours. The doctor there examined and x-rayed her and the charges were $60.00. Sometime thereafter, she did not know how long, she went one time to a doctor in Santa Fe, New Mexico. She did not know what his charges were. He made no x-rays. He only examined her.

Insofar as the record shows, Mrs. Slade had ample opportunity to read the release and nobody prevented her from doing so. It was her own choice to sign without reading it. It is well settled that a release cannot be avoided on the ground that the releasor was ignorant of or mistaken as to the contents of the release or failed to read the release before signing it in the absence of fraud, or some other improper influence. Turner v. Ontiberos, 193 S.W. 1089 (Tex.Civ.App., El Paso, 1917, writ ref.); Panhandle & Santa Fe Ry. Co. v. O'Neal, 119 S.W.2d 1077, 1080 (Tex.Civ.App., Eastland, 1938, writ ref.); Harvey v. Elder, 191 S.W.2d 686, 689 (Tex.Civ.App., San Antonio, 1945, writ ref.); 50 Tex.Jur.2d, page 12, Sec. 10.

Certainly there must be a meeting of the minds of the parties to create a valid contract, but the determination of whether the minds of the parties met and whether there was an offer and acceptance must be determined by the 'objective' standards of what the parties said and did and not by their alleged 'subjective' state of mind. Embry v. Hargadine, McKittrick Dry Goods Co., 127 Mo.App. 383, 105 S .W. 777 (1907); Brant v....