Southwestern Telegraph & Telephone Co. v. James

• Decision Date: 07 February 1906
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. JAMES.
• Court: Texas Court of Appeals

91 S.W. 654

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. JAMES.

Court of Civil Appeals of Texas.

February 7, 1906.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by Jasper Gordon James against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed.

Gregory & Batts and Geo. S. Wright, for appellant. Dickens & Cupp, for appellee.

FISHER, C. J.

The appellee sued the appellant for damages resulting from a fall from a telephone pole; which fall was caused by the negligence of the appellant. Appellee at the time was in the employ of the appellant. Among other defenses pleaded, the appellant set up a release signed by appellee as a satisfaction in full for all claims for damages he had sustained. The appellee, by supplemental petition, attacked this release upon several grounds. Verdict and judgment were in appellee's favor for $267.50.

Appellant's first assignment of error is to the effect that the court erred in overruling defendant's first special exception to plaintiff's first supplemental petition. Defendant's answer also contained special exceptions addressed to plaintiff's first amended petition. The judgment merely shows that defendant's general demurrer and special exception to plaintiff's petition were considered, and were overruled by the court. There is nothing in the record indicating that the special exception to plaintiff's first supplemental petition was called to the attention of the trial court, and that it was overruled.

There are several assignments of error in the record in which it is claimed that the court erred in not rendering judgment in defendant's favor non obstante veredicto. These assignments are overruled. As we have previously held, the rule of non obstante veredicto is in the practice in this state, at least so far as its enforcement by this court is concerned, obsolete. A trial court has the power, in a proper case, to direct the jury to return a certain verdict; but if a case is submitted to a jury, and a verdict is returned, the court has not the authority to enter a judgment contrary to the verdict. It has the power to set aside the verdict and grant a new trial; and it may possibly, in certain instances, have the authority to discharge a jury and withdraw the case from their consideration, and render judgment; or, as before said, direct and instruct the jury as to the character of verdict to be returned. But the assignment of error contained in the record, to the effect that the court erred in not setting aside the verdict, and granting the defendant a new trial, is well taken. The release or contract of settlement executed by the appellee is an impediment in the way of his recovery, unless some legal or equitable grounds are alleged and proven that would avoid its operation and effect. While the supplemental petition inferentially attacks the release on several grounds, the only ground submitted by the charge as a basis for its avoidance is stated as follows: "Plaintiff, by supplemental petition in answer to defendant's pleas set out in defendant's answer, pleads that the said instrument pleaded by defendant was obtained by fraud in this: That at the time it was executed the agent of the company who secured the same...