Texas & P. Ry. Co. v. Hubbard

• Decision Date: 04 July 1914
• Docket Number: (No. 1276.)
• Citation: Texas & P. Ry. Co. v. Hubbard, 169 S.W. 1058 (Tex. App. 1914)
• Court: Texas Court of Appeals
• Parties: TEXAS & P. RY. CO. v. HUBBARD.

169 S.W. 1058

TEXAS & P. RY. CO. v. HUBBARD.

(No. 1276.)

Court of Civil Appeals of Texas. Texarkana.

July 4, 1914.

Rehearing Denied October 15, 1914.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Action by John Hubbard against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

F. H. Prendergast, of Marshall, for appellant. Lane & Lane and M. B. Parchman, all of Marshall, for appellee.

LEVY, J.

The appellee brought the suit to recover damages claimed to have been received by him on October 20, 1911, while he was a passenger on the railroad. The appellant set up in its answer that the plaintiff was injured and that he settled his claim with the railway company, and the railway company paid him $50 and took a receipt in full for all damages sustained by him. The plaintiff, by supplemental petition, averred that if he ever signed the release set up by the defendant, it was at a time when his mind was in a dazed or unconscious state, due to pain and suffering from the injury and morphine and medicine taken to ease the pain, and that the agents of the defendant, knowing of his condition, fraudulently took advantage of his condition and procured the release, and, further, that if he ever received the $50 mentioned it was by way of check, and was given to and received by him to enable him to get home, and not in settlement or part settlement of his claim, and that he was willing to have it credited on any judgment he might recover. There was a verdict and judgment for the appellee for $2,999, less $50. As no question on appeal is made in respect to negligence, we must assume that negligence as a fact was proven or conceded. The only issues submitted to the jury were with reference to the release and the amount of damages.

The second, third, fourth, seventh, and eighth assignments predicate error upon the giving and refusing of charges. As there was no bill of exceptions taken to the charges, as required by the latest law, we are without authority to consider the assignments and the propositions thereunder. Ry. Co. v. Phebe Moody, 169 S. W. 1057, this day decided by this court.

The ninth assignment predicates error on the part of the court in not granting a new trial, upon the ground that the verdict of the jury is contrary to the evidence. The point made is that the circumstances surrounding the settlement are not sufficient to entitle the plaintiff to disregard or set aside the settlement he made. Between 1 and 2 o'clock at night, while a passenger, the appellee received injuries and was...