135 S.W. 1031 | Tex. App. | 1911
The defendant pleaded that on November 27, 1907, it settled and adjusted the plaintiff's claim for a consideration of $40 paid to him, and that he executed a release therefor, fully releasing the defendant from any further claim or liability; and specially denied that this release was obtained by any fraud or misrepresentation; and averred that the plaintiff freely and voluntarily signed it with a full understanding of its contents. In reply to defendant's answer, the plaintiff pleaded that the release set up was without consideration, and substantially the same facts in regard thereto as were set forth in his original petition. The case was tried on February 24, 1910, and a verdict returned in the plaintiff's favor for the sum of $4,960. The defendant's motion for a new trial being overruled, it perfected an appeal to this court.
The evidence was sufficient to establish the material allegations of the plaintiff's petition, and to authorize a recovery by plaintiff for the amount awarded by the verdict of the jury.
Appellant's first assignment of error charges that the fourth paragraph of the court's charge is erroneous, because it was "calculated to induce the jury to believe that if, when the plaintiff accepted the draft and executed the release, he did not know that the agent, Crenshaw, intended the money as a payment for his injuries, the release was not binding." We do not think the charge is subject to this criticism. In this view we are sustained by the case of Railway Co. v. Cain,
In the fifth paragraph of his charge the court instructed the jury as follows: "If you find from the evidence that the plaintiff signed the release as shown by the evidence and believing the same to be a receipt, and that he acted upon the reading of it by the agent of the defendant, or upon his statement that it was in payment for expenses, that the true nature of the instrument was not disclosed or explained to plaintiff, and that he would not have signed such release if he had known the contents of said instrument, and the claim agent of the defendant intentionally concealed the nature of the release from the plaintiff and knew that the plaintiff was ignorant of the character of the instrument, and said concealment was made by the claim agent of the defendant to induce plaintiff to execute the same without investigation, and without knowledge of its real meaning, then you are instructed that the said release would not affect the right of plaintiff to recover the damages sued for, if you find, from the evidence and law as herein given you, that he had any *1033
right to recover." It is claimed that this charge is erroneous because: (1) There is no evidence that said agent intentionally concealed the nature of the release from the plaintiff; (2) there is no evidence that the defendant's agent stated that the money paid him, and on account of which he signed the release, was in payment of expenses; (3) "the release is not invalidated merely by the plaintiff believing it to be a receipt when he signed it and by his acting upon the reading of it by the agent of the defendant, unless it was misread, or upon the agent's statement that the money was in payment of expenses, and that the true nature of the instrument was not explained to the plaintiff, and that the claim agent intentionally concealed the nature of the release from the plaintiff; that, before the plaintiff can escape the binding force of a release signed by him, he must have been induced to sign it by misrepresentations as to its contents, and the release is not invalidated by the claim agent's silence." This assignment should not, in our opinion, be sustained. The charge, as applied to the facts of this case, stated a correct proposition of law. The evidence was sufficient to warrant a finding by the jury that the agent of appellant purposely concealed from appellee the nature of the instrument he was called upon to execute; that by reason of the apparent solicitude of said agent to secure the plaintiff, and others who had been delayed by the wreck, from loss on account of such delay, by a gift of such a sum of money as would cover such loss, and by said agent's repeated declaration that the check was given him for that purpose, plaintiff was deceived and induced to sign said instrument without having it read to him, and without knowing the contents of the same. The jury was also authorized to find that appellant's agent, in obtaining the release in the manner he did, perpetrated a fraud upon plaintiff; that plaintiff was not, under the circumstances in which he was placed, guilty of negligence in failing to ask that the instrument be read to him. Railway v. Cain, supra; Railway v. Shuford,
We think the case is distinguishable in the facts from the cases cited by appellant and is not ruled by either of those cases.
The third, fourth, fifth, sixth, seventh, and eighth assignments of error complain of the court's refusal to give certain special charges requested by the appellant. There was no error in refusing these charges. The fourth, fifth, seventh, and eighth were defective in that each of them ignored an essential element of a correct charge on the subject to which they related, namely, want of consideration to support the release. But, if the charges stated correct propositions of law applicable to the facts, then there was no error in refusing them for the reason that each was fully covered by some other special charge requested by the appellant. Again, all of said charges relate to the same issue or issues, and, the court having selected and given other charges requested by appellant upon said issue or issues, appellant is in no position to complain that those in question were not given, instead of those selected by the court, or to insist that all should have been given. Railway Co. v. Ford, 118 S.W. 1137.
Appellant's ninth and last assignment is that the court erred in overruling its motion for a new trial because the verdict of the jury is against the overwhelming preponderance of the evidence. In this view of the evidence we do not concur and have so expressed ourselves, in effect, in the statement of the case and in discussing the second assignment of error. Contrary to the view taken by counsel for appellant, we think the evidence sufficient to justify the conclusion that the release in question was without consideration; that it was neither read to the plaintiff nor explained to him before he signed it; that appellant's agent represented said release to be a receipt for money paid appellee to cover the expenses he would incur by reason of the delay occasioned by the collision of the trains; or that his acts, conduct, and statements with reference to the same were equivalent to a positive misrepresentation of the contents of the instrument, and calculated to, and did, mislead the plaintiff as to the true contents of the same and constituted a fraud upon him. The testimony of the plaintiff, strengthened, as we think it is, by the admitted words, acts, and methods of the defendant's agents in securing the release, is sufficient to warrant the above conclusions and sustain the verdict of the jury.
Believing that appellant's assignments of error disclose no reversible error, and that the proper judgment has been rendered in the case, said judgment will be affirmed.
Affirmed.