Texas Employers Ins. Ass'n v. Kennedy, 2315-7515.

• Decision Date: 16 October 1940
• Docket Number: No. 2315-7515.,2315-7515.
• Citation: 143 S.W.2d 583
• Parties: TEXAS EMPLOYERS INS. ASS'N v. KENNEDY.
• Court: Texas Supreme Court

143 S.W.2d 583

TEXAS EMPLOYERS INS. ASS'N v. KENNEDY.

No. 2315-7515.

Commission of Appeals of Texas, Section A.

October 16, 1940.

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

Suit by W. W. Kennedy against the Texas Employers Insurance Association to cancel and set aside a compromise settlement agreement between plaintiff and defendant. A judgment for defendant was reversed and the case remanded by the Court of Civil Appeals, 121 S.W.2d 434, and defendant brings error.

Judgment of Court of Civil Appeals affirmed.

Lawther, Cramer, Perry & Johnson, and Wm. M. Cramer, all of Dallas, for plaintiff in error.

Clint & Eades, D. B. Eades, Allen Eades, and Eric Eades, Jr., all of Dallas, for defendant in error.

HICKMAN, Commissioner.

This suit was instituted by defendant in error, W. W. Kennedy, against plaintiff in error, Texas Employers Insurance Association, to cancel and set aside a compromise settlement agreement theretofore executed by Kennedy and the Association and approved by the Industrial Accident Board, on the ground of alleged fraud in its procurement. At the close of the testimony the jury was peremptorily instructed to return a verdict for the Association and, upon the verdict returned in accordance with the instruction, judgment was rendered that Kennedy take nothing. That judgment was reversed by the Court of Civil Appeals and the case remanded, one of the justices dissenting. 121 S.W.2d 434.

It is disclosed by the briefs and record that the Association contended in the trial court, and still contends, that the plaintiff failed to make out a prima facie case in three particulars, viz.: First, by failing to show the filing of a claim for compensation with the Industrial Accident Board within six months after the alleged injury, or an excuse for not so filing second, by failing to show a tender back of the consideration paid him for the agreement; and, third, by failing to show that actionable fraud was practiced on him.

The majority opinion of the Court of Civil Appeals overruled the first and third contentions, but sustained the second, thereby holding that plaintiff neither pleaded nor proved a fact essential to his right to recover, namely, a tender back by him of the amount paid him under the agreement. That court nevertheless reversed the trial court's judgment and remanded the cause. We agree with the dissenting opinion upon the proposition that, if any one of the three contentions is upheld, the judgment of the trial court should be affirmed, for an appellate court is not authorized to reverse an errorless judgment. Simmons v. Dickson, 110 Tex. 230, 218 S.W. 365; Wiggins v. Stephens, Tex.Com.App., 246 S.W. 84; Perego v. White, 77 Tex. 196, 13 S.W. 974; Fowler v. Hardee, Tex.Civ. App., 16 S.W.2d 154.

The above holding brings about this situation in this court: The Association alone filed an application for writ of error from the judgment of the Court of Civil Appeals, and since the holding of that court was favorable to its contention on the question of the necessity of a tender back by the plaintiff, no assignment was brought by it to this court challenging that holding. There was such an assignment brought to the Court of Civil Appeals by Kennedy. In such situation the Supreme Court is not limited to a consideration of the assignments brought forward in the application. If the Court of Civil Appeals has rendered a correct judgment, that judgment should be affirmed, provided the record before that court affords a ground for such affirmance. The rule has therefore been developed, and has become well established, that when it is determined that the Court of Civil Appeals erred in basing its judgment on a particular ground, the Supreme Court is authorized to consider the briefs filed in that court, not for the purpose of reversing its judgment, but for the purpose only of determining whether, by considering other assignments therein, it could affirm such judgment. Cox, Inc., v. Humble Oil & Refining Co., Tex.Com.App., 16 S.W.2d 285; Jordan v. Morten Investment Co., 127 Tex. 37, 90 S.W.2d 241; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123. We have therefore considered the assignment brought to the Court of Civil Appeals by defendant in error, Kennedy, presenting the question of the necessity of a tender back by him of the consideration received for the settlement agreement as a condition precedent to his right to maintain this action.

The general equitable rule is that a plaintiff in a suit for the rescission or cancellation of a contract to which he is a party must return, or offer to return, any consideration which he has received under the contract. Many Texas authorities so holding are collated in Casualty Reciprocal Exchange v. Bryan, Tex.Civ.App., 101 S. W.2d 895.

The above is a rule of equity, and not a fixed rule of universal application. For example, in a common law action for damages for personal injuries and to cancel a release and settlement agreement executed by the plaintiff and the defendant, it is well established in this jurisdiction that such tender or offer to tender is not required. Smith v. Atchison, T. & S. F. R. Co., Tex.Com.App., 232 S.W. 290; Texas & P. R. Co. v. Jowers, 110 S.W. 946, writ refused; International & G. N. R. Co. v. Shuford, 36 Tex.Civ.App. 251, 81 S.W. 1189, writ refused; Galveston, H. & S. A. R. Co. v. Cade, Tex.Civ.App., 93 S.W. 124, writ denied.

In such case the facts...