Texas & P. Ry. Co. v. Presley

• Decision Date: 20 January 1939
• Docket Number: No. 1874.,1874.
• Parties: TEXAS & P. RY. CO. v. PRESLEY.
• Court: Texas Court of Appeals

127 S.W.2d 914

TEXAS & P. RY. CO. v. PRESLEY.

No. 1874.

Court of Civil Appeals of Texas. Eastland.

January 20, 1939.

On Rehearing March 17, 1939.

Further Rehearing Denied April 28, 1939.

Appeal from District Court, Bowie County; N. L. Dalby, Judge.

Action by J. D. Presley against the Texas & Pacific Railway Company for injuries sustained by the plaintiff when he fell from roof of building while plaintiff was repairing the building, as an employee of the defendant. From an adverse judgment, the defendant appeals.

Affirmed.

King & Wheeler, of Texarkana, for appellant.

Lincoln & Harris, of Texarkana, for appellee.

GRISSOM, Justice.

In March, 1937, plaintiff, J. D. Presley, while employed as a carpenter by defendant, Texas & Pacific Railway Company, fell from a house he was repairing for defendant and was injured. After plaintiff was discharged from a hospital he received a draft from defendant for $50. It recited on its face that it was "in full and complete settlement and payment for personal injuries and damages received at Choctaw, Texas 3/24/37." On the back of the draft in bold face type were the words "Read before indorsing." Directly below the last quoted words plaintiff wrote his indorsement. On the day plaintiff received the draft he signed and delivered to defendant the following release:

"The Texas and Pacific Railway Company

"Release of Personal Injury and Damage Claim

"In consideration of the sum of Fifty and no/100 Dollars ($50.00) this day paid to J. D. Presley by the Texas and Pacific Railway Company, I hereby release said company from all claims, demands and causes of action against it which have accrued, or may hereafter accrue to me for all injuries and damages of every nature whatsoever, received in and resulting from an accident at or near Choctaw, Texas, on or about the 24 day of March, 1937, when employed as B & B mechanic.

"To secure this settlement and the payment of said sum I hereby rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, disabilities and damages and that no representations or statements about them, made by said Company or its representatives or agents have influenced me in making nor induced me to make this settlement.

"No promise of employment nor other agreement not herein expressed has been made by said company, nor by any of its representatives, agents or employees.

"In testimony whereof I have hereunto set my hand this 30 day of April, 1937.

                         "(Signed) J. D. Presley
                         "Address—Red Water, Texas
                "Witness
                "P. O. Ruthven. Address—Savoy, Texas
                "J. S. Porter Address—Ft. Worth, Texas
                        "Paid by Draft No. 9789."
                

About one month after plaintiff returned to work for defendant he was discharged. Thereupon plaintiff sued defendant for the damages thus released, and, upon a trial, recovered judgment for $3,000. Defendant pleaded the release of the asserted cause of action as a defense thereto. Plaintiff alleged that employees of defendant, in addition to the $50, evidenced by the draft, agreed to give plaintiff a "permanent" position with the defendant company as a part of the consideration for the release of his asserted cause of action against the Railway Company.

Plaintiff testified with reference to the draft that he indorsed it. He further testified:

"Q. You carried this [the draft] around in your pocket several days, didn't you? A. A day or two; I don't remember how long.

"Q. You cashed it over here at Texarkana, didn't you? A. I sent it home and it was cashed. I couldn't get it cashed up there.

"Q. Did you bring it home and cash it at the Guaranty State Bank at Leary, Texas? A. I sent it and had it cashed.

"Q. Who did you send it to? A. My dad. My brother brought it home.

"Q. Did he bring the money back to you? A. No. It was deposited in the bank in my name.

"Q. To your credit? A. Yes.

"Q. You afterwards checked on the money? A. Yes.

"Q. And checked it out of the bank? A. Part of it.

"Q. Still got some of it yet? A. Yes I believe so.

"Q. How much have you got left? A. I wouldn't say.

"Q. Are you offering this $50 check to the Railway Company if they will take it? A. I don't know. I hadn't given it a thought. * * *

"Q. You read this check, didn't you? A. Yes, I imagine I did, but I don't remember anything it says, but I suppose I did read it and I imagine I did.

"Q. You could have read it if you didn't, couldn't you? A. Yes. * * *

"Q. You had Mr. Ruthven, the station agent at Savoy, to indorse that check after you got it, didn't you? A. Yes.

"Q. How long after that was it? A. Well, it might have been that evening. I went to see if I could get it cashed. I needed some money mighty bad."

Plaintiff's attitude with reference to the return or tender of the $50 paid to him in settlement of his claim for damages, taken in connection with his testimony quoted above, is shown by the statement of his attorney at the time when the plaintiff was asked whether or not he was offering to return the $50 to the Railway Company, as follows: "We want to state that we are tendering to the court the privilege of letting that (meaning the $50.00) apply on whatever judgment, if any, the jury gives the boy."

With reference to the execution of the release, plaintiff testified he expected the claim agent to see him and propose a settlement; that he consulted his section boss; that his section boss advised him to take whatever amount the claim agent offered and a permanent job with defendant. He testified that when the claim agent arrived the claim agent asked plaintiff what plaintiff considered a reasonable sum and plaintiff told him he had been figuring on full time for the time he had lost. That the claim agent told plaintiff the company was in the habit of offering half time "and a permanent job to a man that had been hurt." That the claim agent then offered plaintiff $50 and a "permanent" job with defendant which proposition was accepted by plaintiff. That the claim agent then wrote out the draft and gave it to plaintiff. Plaintiff further testified:

"Q. Then he [the claim agent] wrote another paper out—a release, didn't he? A. I don't remember all he did write.

"Q. He wrote that paper out—Defendant's Exhibit Number `2' [the release] and you took it over and sat down and read it, didn't you? A. I looked it over, but I don't remember reading it.

"Q. You read it and studied it for about 10 or 15 minutes, didn't you, before you signed it? (Witness looks at paper, but does not answer now)

"Q. Nobody prevented you from reading this paper, did they? A. No; I looked over it."

Plaintiff further testified that defendant's doctor misrepresented plaintiff's physical condition.

In Texas & P. Ry. Co. v. Poe, 115 S.W. 2d 591, our Supreme Court, in an opinion by Justice Sharp, said: "The sole question for decision is whether Poe, who claims to have been injured while in the employment of the railway company, may settle a cause of action therefor by the acceptance and cashing of a draft which recites that it is in full settlement of his injuries, and then maintain a suit for such injuries, in the absence of an agreement to that effect."

The draft given to Poe contained the provision, "In full and complete settlement and payment for personal injuries and damages received at Sweetwater, Texas, November 23, 1931" and on the back in large type were the words "Read before endorsing." The opinion contains the following:

"Poe took the draft, and after keeping it three days cashed it; and he still retains the money and makes no unconditional offer to return it to the railway company. Poe also signed a release for the injuries, but stated that he thought it was only a receipt for the draft.

* * * * * *

"It is contended that the issue of fraud was raised as to the execution of the release by Poe, and that such issue also applied to the draft received and cashed by him. There is no controversy about the rule that if the railway company, by its agent, fraudulently induced Poe to sign the release, without reading it or having it read to him, or that he relied upon the statements as to its contents, and such statements on the part of the agent were fraudulent, Poe could avoid such release.

* * * * * *

"Admitting that Poe signed only a receipt for the draft, the fact remains unchallenged that he received the draft for an amount in excess of his time, and that the draft contains plain and unmistakable words that it was in full and complete settlement of his injuries. The draft also bore on its reverse side, where Poe was to endorse same, the further notice: `Read before endorsing.' The evidence is undisputed that he kept the draft in his possession for several days, and that he had ample opportunity to read it and understand its contents. He then cashed the draft and retained the proceeds thereof.

"The exception to the rule above cited is fully recognized, and if applicable would control here. Under the facts in this case that exception will not save his cause of action from the general rule above stated, and permit him to recover. The basis of the railway company's defense to Poe's claim in this suit is not narrowed merely to the release signed by him, but such defense also rests on the draft accepted and cashed by him. Under the state of this record, Poe was concluded from a recovery against the railway company by the acceptance and cashing of the railway company's draft and the retention of the proceeds. Missouri, K. & T. Ry. Co. v. Morgan, Tex.Com.App., 210 S.W. 512; 1 Tex.Jur. p. 281, § 37; 1 C.J.S., Accord and Satisfaction, pp. 528-533, § 34."

The trial court's action in instructing a verdict for the defendant was upheld by our Supreme Court.

In Panhandle & S. F. Ry. Co. v. O'Neal, Tex.Civ.App., 119 S.W.2d 1077, writ refused, we held that an employee who accepted and cashed a draft which recited on its face that it was in payment of all injuries sustained by the employee and who signed a...