Southwestern Greyhound Lines v. Buchanan

• Decision Date: 14 May 1942
• Docket Number: No. 9866.,9866.
• Citation: Southwestern Greyhound Lines v. Buchanan, 126 F.2d 179 (5th Cir. 1942)
• Parties: SOUTHWESTERN GREYHOUND LINES, Inc., v. BUCHANAN.
• Court: U.S. Court of Appeals — Fifth Circuit

126 F.2d 179 (1942)

SOUTHWESTERN GREYHOUND LINES, Inc., v.BUCHANAN.

No. 9866.

Circuit Court of Appeals, Fifth Circuit.

February 24, 1942.

As Modified on Denial of Rehearing May 14, 1942.

Virgil T. Seaberry, of Eastland, Tex., and Carl P. Springer, of Abilene, Tex., for appellant.

Warren B. Phillips, of Corpus Christi, Tex., Thomas L. Blanton, of Albany, Tex., Wm. M. Davis, of Longview, Tex., and Robert Williamson, of Tyler, Tex., for appellee.

Before FOSTER and McCORD, Circuit Judges, and DAWKINS, District Judge.

FOSTER, Circuit Judge.

This suit was originally brought by appellee, A. L. Buchanan, hereafter referred to as plaintiff, and his wife, in a state court, to recover damages for personal injuries suffered by his wife in a collision between an automobile, in which she was riding as a passenger, and a bus operated by appellant, Southwestern Greyhound Lines, Inc., hereafter called Bus Company.In the state courts a verdict was directed for defendant but a new trial was granted, after which plaintiff was allowed to take a non-suit without prejudice.Thereafter this suit was filed in the United States District Court for the Northern District of Texas.The Bus Company denied negligence, alleged the proceedings in the state court had terminated the case, and relied on a settlement for $50 and a release executed by plaintiff and his wife.Plaintiff challenged the release as invalid on the ground of fraud and offered to return the $50 paid for it.The case was tried to a jury on conflicting evidence and resulted in a verdict for $17,500.A motion for a new trial was overruled and judgment was entered on the verdict.Before the case was submitted Mrs. Buchanan was dismissed as a party.The Bus Company assigns error to denial of a directed verdict, to a portion of the charge of the court and to the refusal of the court to give a special charge requested.These three assignments may be considered together.

The printed record contains approximately 700 pages but it is unnecessary to restate the evidence in detail.

The accident occurred on Saturday afternoon January 7, 1939, at about 5 o'clock on the public highway, some 8 miles from Albany, Texas.The car was being driven by Mrs. Brice, Mrs. Buchanan's sister.The bus collided with it from the rear.It was knocked off the road and damaged and Mrs. Buchanan was rendered unconscious by the collision.She was immediately taken to the office of Dr. D. G. Curb at Albany and given treatment.Dr. Curb put four sutures in a cut on her forehead and she went back to Mrs. Brice's home at Albany, where she remained about three weeks before she was able to go to her home at Rising Sun.Dr. Curb visited her again at the Brice home on Sunday, January 8th.Mrs. Buchanan told him she was bruised from her hips down and was sore all over.

On Monday morning, January 9th, Frank Massey, an independent investigator, acting for the Bus Company in this transaction as a claim agent, visited Dr. Curb and obtained from him a statement, which he wrote out on the typewriter, first putting in the subject headings and having Dr. Curb dictate the details.The report stated that Mrs. Buchanan had pain from lacerations on the middle forehead, pain from skin abrasions of the right knee and pain from abrasions of the left shin and from a contusion of the left big toe; that there was no other evidence of injury of any character.In the report Dr. Curb gave as his opinion there was a condition of general soreness but there should be no disability because of injuries, and complete recovery was expected within two weeks following date of the accident.The report was addressed to the Bus Company and not to his patient or plaintiff.His statement as to the patient complaining of pain under pressure over the sternum and contusion of the area under the chin was left out of Dr. Curb's report.

After promising to...