93 S.W. 516 | Tex. App. | 1906
This is a suit by the appellee against the railway company for damages resulting from injuries sustained by him from being thrown from a handcar. The appellee was a section foreman *237 in the employ of appellant, and was operating the handcar in the discharge of his duties at the time he was injured.
The negligence alleged is a failure of the employes operating the freight train, which was nearing a cut, to blow the whistle or ring the bell, as required by the rules of the company.
The appellant, besides a plea of general denial, pleaded assumed risk and contributory negligence; and further, that after the accident the plaintiff and defendants made a settlement of the cause of action sued on and a release was executed by plaintiff, in consideration of $1 and an agreement to employ him for one day as section foreman at the usual rate of pay, which agreement was complied with; and, further, that if said consideration for said release was not what was stated therein, then that the full and complete consideration for the release was the acceptance by appellee of the promise of the general claim agent of the defendant company to pay him for full time during the period of disability, which promise was accepted by Minter, and which it is alleged, constituted a good and valid consideration for the release.
Verdict and judgment were in appellee's favor for $3,750. This is the second appeal of this case. On the former appeal we held that the evidence was sufficient to support a verdict in appellee's favor. The evidence here is practically the same as it was on the first trial; and we find that there is evidence to support the averments of negligence charged against appellant, and that the jury were authorized, from the facts, to reach the conclusion that the appellee was not guilty of contributory negligence, and that the injuries received were not the result of a risk assumed. The appellee did enter into a contract of release, in some respects as pleaded by the appellant, but it is contended by him that the principal consideration for the contract was the promise upon the part of appellant to pay him for the full time he lost by reason of the injuries sustained; and there is evidence tending to show that the appellant did not pay the full sum for which it was liable, and which it agreed and promised to pay, but only paid about half of that amount; that the appellee did not accept this payment and demanded the full sum he was entitled to receive, which was refused by the appellant.
There is a theory of the case which is justified by the evidence, to the effect that the appellee did not merely accept the promise of appellant to pay as consideration for the execution of the release, but that the payment should actually be made in order for the promise to be binding. We also find that there is evidence which justifies the conclusion that the verdict is not excessive.
These findings dispose of all the assignments which complain of the verdict; and also dispose of appellant's third assignment, which is based upon the refusal of the trial court to give a charge to the effect that the release was binding upon the plaintiff, and would operate as a bar to the right of plaintiff's recovery for the damages sued for.
Appellant's first assignment of error complains of the refusal of the court to give special charge No. 3, requested by it. This was one of the charges passed upon by this court in the former appeal of this case, which is found reported in 11 Texas Ct. Rep., 863. We do not construe that opinion as holding that it was error for the court to refuse to give this charge in the form it was stated, but we reversed on the ground that *238 it was error for the trial court to refuse to give another charge which was refused on the first trial, but which, it appears from an examination of the record, was given in the present case; and we are of the opinion that the issue embraced in charge No. 3 was substantially covered by the charge that was given. But however, charge No. 3 which was refused is not properly framed, and we so stated in the former opinion. It authorizes the jury to find on the combination of facts there stated in favor of appellant, although the plaintiff might be correct in his theory that full payment should be made for the time lost in order to result in full satisfaction. The plaintiff's contention is that he did not merely accept the promise of the appellant to pay, but that the performance of the promise was one of the essential conditions entering into the contract of settlement. Charge No. 3, which was refused, omits this feature of the case.
We have carefully considered all the remaining assignments of error, and find that none are well taken. Therefore, the judgment is affirmed.
Affirmed.
In the opinion delivered on the first appeal of this case, we reversed and remanded for the reason that the trial court refused to give this instruction; and, as before said, on the second trial, the appeal of which we are now considering, this charge was given as above quoted. On the first trial of the case the appellant also requested the following instruction, which was refused: "If you find from the evidence that in consequence of the settlement alleged to have been made, if you believe the same was made, the plaintiff was given employment by the defendant in consideration of such settlement, and that but for such settlement he would not have received such employment, and the plaintiff so understood when he signed the release and took the employment, then you will find for the defendant."
In disposing of this charge in the opinion referred to, it was stated *239 that although not accurate it was sufficient to call the attention of the court to the point desired to be submitted; and there is practically a statement in the opinion to the effect that if so changed to make it proper, the issue should have been submitted. At the present trial, the court again refused this instruction, and in comparing it with the charge as refused, as shown by the record in the former appeal, we find that the verbiage of the two instructions is practically the same. It is contended that as we held in the opinion disposing of the first appeal that this charge should have been given, it was error for the court to refuse it; and, further, that the charge is correctly framed and presents an issue that should have been submitted to the jury. The case as at first determined by this court was reversed on the ground that the court refused to give the charge first quoted above; and it was not the intention of the court to hold that the special charge last quoted should have been given as worded. To have so held, the court would have departed from a rule that prevails in this court, and which is established by a long line of decisions of the Supreme Court and the Courts of Civil Appeals.
In Harris v. First National Bank,
The charge requested was not correct, because it omits to embrace an issue which the evidence tends to establish, and which should have been included in order to make the charge perfect. It will be seen by reference to the charge first quoted, and which was given at the request of appellant, and it is also apparent from the manner in which the case was conducted in the court below and treated here, that appellee was to receive the value of the time lost by reason of the accident, or that the promise was made to pay him that sum as a part of the consideration for the contract releasing the road from further liability. The written release, as found in the record, does not in terms state that the Railway Company was to pay appellee the value of the time lost as a part of the consideration, nor does it contain a promise that such payment would be made; and on the trial of the case it does not appear that any objection was made to the introduction of the evidence tending to establish the fact that a promise was made, or the fact that such payment should be made before the release would become *240 effective, on the ground that such evidence introducing the additional consideration, would tend to vary, control or establish a different contract from that called for in the written agreement.
In the trial below, as well as here, the parties have treated the payment for such time lost, or the promise to pay for such time lost, as a part of the consideration; and in passing upon this question, we will treat it in a like manner. There is no dispute in the evidence but that the Railway Company promised to pay the appellee for the value of the time lost; but the dispute arises as to how much this sum was, and also as to whether the contract was that merely the promise was made and was solely relied upon by the parties, or whether in addition to the promise payment should be actually made for the full time lost in order for the contract to become effective. The Railway Company contends that merely the promise to pay was made, and that if there has been any breach of the agreement in this respect, appellee's remedy would be to sue for the amount he is entitled to, and the effect of the breach would not be to avoid the contract of release in toto.
The appellee contends, that, according to his theory, which we have held has some evidence to support it, in order for the promise to be binding, payment for the full sum due should have been made; and upon this point we desire to say that there is evidence in the record which shows that the railway company did not pay nor tender to the plaintiff the full amount that he was entitled to, but refused to make such payment. Now the special charge as requested and which was refused, ignores this phase of the case. It authorizes a verdict in favor of the appellant merely on the ground that the plaintiff was given employment in consideration of the settlement, and that but for such settlement he would not have received such employment, and that the same was understood by the plaintiff when he signed the release. This all might be true, but still the plaintiff would be entitled to recover if the additional consideration was an element of the contract and the case as submitted, as is contended for by him. The plaintiff could very well have said that "It is true, you did give me employment in consideration of the settlement, and but for the settlement I would not have received the employment, and I so understood at the time that I signed the release; but in consideration of these things I did not waive my right to demand the execution of that part of the contract wherein it was agreed that the sum due for the lost time should be actually paid, in order for the written promise to be binding."
If there had been no element in the case that payment should have been actually made, in order for the agreement to become effective, the special charge should have been given; or if the charge had been submitted upon the theory that the facts therein stated were all that was agreed to, it would have been sufficient.
The following authorities, among others, Missouri, K. T. Ry. Co. v. Ferris, 55 S.W. Rep., 1119; Cotton States Building Co. v. Jones, 60 S.W. Rep., 587; Galveston, H. S. A. Ry. Co. v. Jackson,
The motion for rehearing is overruled.
Overruled.
Writ of error refused.