Texas & P. Ry. Co. v. Presley

• Decision Date: 04 June 1941
• Docket Number: No. 1856-7603.,1856-7603.
• Citation: 152 S.W.2d 1105
• Parties: TEXAS & P. RY. CO. v. PRESLEY.
• Court: Texas Supreme Court

Page 1105

152 S.W.2d 1105

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

No. 1856-7603.

Commission of Appeals of Texas, Section B.

June 4, 1941.

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

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. An adverse judgment was affirmed on defendant's appeal by the Court of Civil Appeals, 127 S.W.2d 914, and defendant brings error.

Affirmed.

The opinion of Grissom, J. herewith adopted, follows:

In March, 1937, plaintiff, J. D. Presley, while employed in the Bridge & Builders Department as a section hand for the defendant, Texas & Pacific Railway Company, fell from a house he was repairing for defendant and was injured. He had been working for the Railway Company about eight months at the time of his injury. For several days prior to plaintiff's injury, the section crew, including plaintiff, had been repairing the inside of a section house. The night before plaintiff was injured there was a heavy rain in the vicinity of the section house which was being repaired. Water was standing around the house and the ground in that vicinity was muddy. The roof of the house was covered with metal shingles and the roof was steep. The roof was wet from the rain that had fallen the night before. Plaintiff was a carpenter who had some experience in working on roofs but had never before worked upon a metal roof. He had been employed by Pleasant Kerry, his section foreman. He was 22 years of age. He knew of other section hands who had been employed and "fired" by his section foreman. On the morning after the rain, and under the conditions mentioned, he was ordered by his section foreman to get a ladder and go up on the roof and repair a brick flue located at the top of the roof. There were only two ladders at the place where the work was being done and both were too short to reach to the top of the roof. On the west side of the house there was a patch of Bermuda grass which was not covered with water. In order to repair the roof it was necessary to build a box in which mortar could be mixed and the Bermuda grass spot was selected by plaintiff as the place to set the ladder for his ascent to the roof of the house, and the place where the mortar was to be mixed, for the reason that it was the only spot near the house where such work could be done having the bottom of the ladder and the box in which the mortar was to be mixed out of the water and mud. In going to work and in obtaining and placing the ladder in position, plaintiff had necessarily gotten his shoes wet and muddy. There were no ropes and no ladder with a hook that could be placed over the top of the house and no other appliances immediately available for the purpose of ascending to the top of the metal roof and repairing the flue as plaintiff was directed to do. There were some ropes at the section camp about two miles away. In order to get them it was necessary to push a hand car up-grade the two miles to camp. How many persons would have been required to do this is not shown by the record. The distance from the edge of the roof to the ground was slightly more than sixteen feet. The available ladders were sixteen feet long. It is evident that plaintiff believed, apparently with good reason, that he must promptly obey, without debate, his foreman's command or lose his job.

Plaintiff placed the bottom of one of the ladders on the Bermuda grass on the west side of the house, climbed the ladder and attempted to scale the metal roof. When he was about half way up the roof his feet slipped from under him, he slid off the roof and onto the ground, landing on his head and shoulders and sustained the injury complained of.

After spending sometime in a hospital and under the care of doctors he returned to work and for about thirty days did light work. Then he was discharged because he was unable to do the work of a section hand. Soon after plaintiff returned to work he was paid $50 by the Railway Company and executed a release of all claims for damages by reason of the injury mentioned. The release recited that he relied upon his own judgment as to the nature, extent and duration of his injuries and that no promise of employment or other agreement not mentioned in the release had been made to plaintiff. The draft for $50 recited on its face that it was in full and complete settlement and payment for the injuries here sued for.

In our original opinion we reversed the judgment for plaintiff for $2,950 and rendered judgment for the Railway Company. In so doing we relied upon and applied to the facts of this case the principles of law announced in Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591; Panhandle & S. F. Ry. Co. v. O'Neal, Tex.Civ.App., 119 S.W.2d 1077; Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, and other authorities therein cited. We are now of the opinion that our action above stated was erroneous for the following reasons: (1) Our statement in the original opinion to the effect that plaintiff did not return, or unconditionally tender, the $50 paid to him in settlement of his claim for damages was incorrect. It was so alleged by the trial amendment, and proved. (2) Plaintiff (appellee here) in his motion for rehearing states that the questions upon which we passed in reversing and rendering the judgment were not presented for our consideration by defendant (appellant here) in its assignments of error, nor briefed. This is correct. (3) Furthermore, we are now convinced that the principles of law announced in the cases above cited, and on which we formerly relied, are not applicable to the facts of this case when properly understood.

The principle of law applicable to the release in question under the circumstances disclosed by this record is plainly and definitely stated in an opinion by Justice Critz in Texas & N. O. Ry. Co. v. Thompson, Tex.Com.App., 12 S.W.2d 963, 964, 966, as follows:

"The defendants, by proper assignment, contend that the case should be reversed because of the refusal of the trial court to submit to the jury the following special issue requested by them: `Did the plaintiff, Tommie L. Thompson, at the time he signed and swore to the release offered in evidence, and at the time he returned same to claim agent Davis, know of the terms and conditions of said release?'

"If the answer of the jury to the issue refused could have altered or changed the result of the case, the refusal to submit the issue was certainly reversible error; but, on the other hand, if the answer could not have altered or changed the result then the trial court was correct in refusing to submit this issue.

"We are of the opinion that in so far as the jury finding is concerned, it is absolutely immaterial to any issue of this case whether plaintiff knew the terms and conditions of the release in question at the time he delivered same to the claim agent of the defendant, for the reason that, if fraud induced the execution and delivery thereof, under the settled law of this state the release was voidable and subject to be set aside for fraud. Rapid Transit Co. v. Smith, 98 Tex. 553, 86 S.W. 322; Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873; Atchison, T. & S. F. Ry. Co. v. Skeen (Tex.Civ.App.) 174 S.W. 655 (writ refused). Such is the law of this state, even though the release contained the following recitations:

"`To secure this settlement and the payment of said sum I hereby represent to said railroad that I am twenty-one years of age, and that I 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 railroad's surgeons 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 railroad, nor by any of its officers, agents or employés.'

"It is the contention of the defendants that, since the release itself contains the above-quoted provisions, before plaintiff can set aside the release or contradict the terms thereof by oral evidence of fraud, the proof must show that fraud committed in the preparation of the...