178 S.W.2d 315 | Tex. App. | 1944
J. H. Harris, Lillie Harris and Alexander James Gonzales brought this suit against H. E. Sanderson (doing business in the name of Safety Cab Company) to recover damages for the death of Elsa Ray Harris Gonzales. Deceased was riding a bicycle along a highway between Camp Barkeley and the City of Abilene when struck and fatally injured by one of defendant's cabs approaching from behind and driven by an employee. The cause of action alleged by plaintiffs consists of a number of different grounds of recovery, each embracing an alleged negligent act or omission as constituting a proximate cause of the death of said Elsa Ray Harris Gonzales.
In their petition plaintiffs alleged that they had released said cause of action for damages, but further pleaded a cause of action for the cancellation, or avoidance, of such release.
The trial was by jury, but when plaintiffs had rested defendant also rested and filed a motion for an instructed verdict on the ground that plaintiffs had wholly failed to establish any negligence on the part of defendant's cab driver, and for the further reason there had been no showing of actionable fraud on the part of defendant or his agents, and hence the release constituted a bar to the cause of action. In response to this motion, the court rendered judgment for the defendant, from which plaintiffs have appealed.1
The alleged errors of the trial court, upon which the appeal is predicated, are set forth in nine points. Points 1 to 6, inclusive, relate to the question of negligence and are immaterial, if Point 7, relating to the question of fraud as avoiding the release of the cause of action should not be sustained. We shall, therefore, give consideration to the seventh and eighth points first. The ninth point is more specifically covered in the other points, and, therefore, requires no separate independent consideration.
Both the seventh and eighth points relate to the cause of action for cancellation of the release. Of these we shall notice the eighth point first. The payment of $260 for the release was made by check payable to the order of plaintiffs and Kiker-Knight Mortuary and Dr. L. J. Picard. After endorsement of the check by all the payees, the money was actually paid over to Kiker-Knight Mortuary and Dr. L. J. Picard. This was done with the consent of plaintiffs, one or more of whom were legally liable to those receiving the money. In our opinion, as a matter of law, the $260 was paid to plaintiffs in the sense here material, that is to say, that its payment, as aforesaid, was a consideration for the release and in equity required to be accounted for.
The seventh point presents a question of considerable difficulty. The point *317 is: "The trial court erred in withdrawing the case from the jury and not submitting the same to the jury because the pleadings and the evidence clearly raise the question of actionable fraud on the part of appellee in securing the release and said question and issue should have been submitted to the jury." In the statement of the case we have already said that a cause of action for cancellation, or avoidance, of the release was alleged. A preliminary question is whether the representation as an element of the alleged fraud, was a representation of fact, or only the expression of an opinion. In their petition, plaintiffs alleged that "* * * the defendant knew that his representation as to his legal liability based on said facts, and the lawyer's representation based on said facts, were false * * * Defendant knew that such representations made by himself and by the attorney were false and fraudulent * * *." Under these allegations it was immaterial to the statement of a cause of action whether the alleged representation was one of fact or of opinion.
It may be conceded that there was evidence sufficient to raise issues of fact upon each and all the elements of actionable fraud as pleaded, unless it was (1) that the representation was one of fact upon which plaintiffs had the right to rely in contradistinction to one of mere opinion upon which they had no right to rely, and (2) that defendant and/or his said attorney knew that the representation (whether one of fact or opinion) was false.
In our opinion; there was no evidence to raise an issue upon the alleged fact that the defendant and/or his attorney knew that the representation was false and was, therefore, made with fraudulent intent. As we understand there is no contention that such was the case. The inquiry is, therefore, narrowed to a consideration of whether the representation was one of fact or of mere opinion, and the legal effect of its being the one or the other.
All the testimony regarding the representation was given by the three plaintiffs.
J. H. Harris testified to the effect that the defendant Sanderson, accompanied by another man, who Sanderson said was his lawyer, stated to plaintiffs that they did not owe anything — were not obligated at all, but to prevent hard feelings were willing to pay the "sanitarium, cemetery and doctor bill;" that they had talked the matter over with witnesses and with one another and decided, as far as they were concerned, they were not "obligated anything to us at all" — "didn't owe nothing."
Mrs. J. H. Harris testified in effect that Mr. Bob Sanderson and a man he brought with him came into the room where all the plaintiffs were present and "introduced himself to us and also turned and introduced us to the other fellow and said that was his lawyer"; and that then Sanderson "told us what he would do; that he would cover all of the expenses, including the hospital bill, doctor bill and the funeral home services and also the cemetery, digging of the grave and spot for the grave." Asked, "What did the lawyer say, if anything?", she said Sanderson turned to him and said: "`I have told them the truth' ", and he said "`Yes, sir', and that he was experienced on it and that he [Sanderson] had told us the truth", and added: "`I think it is mighty nice in Mr. Sanders [Sanderson] giving this to you as a gift.'" Asked what "did Mr. Sanderson say he had done?" she answered: "He said he had talked to the witnesses and also visited the scene of the accident * * * [and] he said he didn't owe us anything by law." She testified that neither Sanderson nor the lawyer told them any of the details or what they found as a result of talking to the witnesses and investigating the accident at the scene.
A. J. Gonzales testified to the effect that Sanderson with a man, who Sanderson said was a lawyer, came to the Harris place and said he came over there to discuss the accident with plaintiffs; that Sanderson said: "He was sorry about the accident, but to keep hard feelings down he would pay the hospital bill, the doctor bill, funeral expenses, and pay the grave digger." Asked, "Did he make any statement in regard to his liability about owing you all anything?" he answered, "Well, he said he didn't owe us anything * * * but to keep down hard feelings he was willing to pay" the things above enumerated, and in addition a cemetery lot. Questioned whether Sanderson asked the lawyer anything, he answered: "He asked the lawyer if he was right about that — he said: `I don't owe these people anything?' and he said, `No', * * that he thought Mr. Sanderson had been very kind to us." That the lawyer said: "`As a matter of law' he said `he didn't owe us a dern thing'." That both Sanderson and the lawyer said that. Asked again what the lawyer said at the conference, he *318 answered: "He [Sanderson] said [to the lawyer] was he right under the law that he didn't owe us a cent?, he said that he was right * * * that Mr. Sanderson was being very nice to us by letting us have that money."
"Q. The other man with Mr. Sanderson being a lawyer, you believed he was telling you what the law really was in regard to it? A. Yes, Sir. * * * I felt like he owed me some to begin with, but after the lawyer explained it to me I didn't.
"Q. What explaining did he do? A. He said under the law he didn't owe us anything.
"Q. Did he tell you why? A. No, he didn't.
"Q. Did you ask why? A. No, I didn't.
"Q. Did Mr. and Mrs. Harris ask why? A. No, they didn't * * * the only thing they said was according to the law that they didn't owe me a cent."
It is believed that the foregoing is substantially all the evidence showing the nature of the representation in question and upon which the existence of any cause of action for the cancellation or avoidance of the release depends. Stated briefly, according to the evidence Sanderson, backed up by his attorney, represented that defendant was not liable to plaintiff for any damages resulting in the death of Elsa Ray Harris Gonzales. However positively asserted, it was, in our opinion, necessarily the statement of an opinion or belief.
The question posed may be stated thus: may the assertion of an opinion by a defendant to a plaintiff that he is not liable for damages growing out of a particular transaction, absent the assertion of any of the facts of such transaction, and absent any evidence to show that such opinion was not held in good faith, sufficient, in connection with other essential elements of fraud, to constitute actionable fraud?
In Hartford Accident, etc., Co. v. Graves, Tex. Civ. App.
The black letter text of C.J.S. says: "According to the weight of authority, the state of mind of a person making a representation is an existing fact, susceptible of actionable misrepresentation; so, redress may be had for the dishonest expression of an opinion contrary to that really entertained by the speaker, or for an unfulfilled promise to perform in the future made with the undisclosed intention not to perform, or without the intention to perform, and for the purpose of inducing action." 37 C.J.S., Fraud, p. 237, § 12.2 *319
Another statement of the rule by the same authority is: "Thus redress may be had for the dishonest expression of an opinion or belief contrary to that really entertained by the speaker," id. The one Texas case cited to this part of the text is Texas Farm Bureau Cotton Ass'n v. Craddock,
"We think it is plain from the testimony referred to that the statement on which the jury predicated their finding in form was no more than an expression of the agent's opinion as to what would be the expense of handling the cotton; for an assertion that a thing will happen in the future necessarily is always a statement of an opinion and is never a statement of a fact. * * *
"However, fraud may be predicated on a statement which purports to be only the expression of an opinion entertained, if the person expressing the opinion in reality does not entertain it, but falsely pretends hedoes for the purpose of deceiving another person." (Italics ours.)
It was deemed a complete answer to the contention of the plaintiff in that case to say: "That the agent honestly entertained the opinion he expressed", which, of course, would be presumed in the absence of any evidence to the contrary. Quoting further from C.J.S.: "An honest but erroneous expression of opinion or belief is not fraud, and this applies to an expert's expression of opinion or belief. Since a statement concerning a matter not susceptible of exact knowledge by the speaker is no more than the expression of a belief, one making such a statement ingood faith is not liable for its falsity." (Italics ours.) 37 C.J.S., Fraud, p. 265, § 24. The Texas case of Wilson v. Jones, Tex.Com.App.,
"To be actionable, a false representation must be one of fact, as distinguished from an expression of opinion which ordinarily is not presumed to deceive or mislead, or to influence the judgment of the hearer, and upon which he has no right to rely. * * *
"[However] The testimony brings him under another well-settled rule, which is more exacting, that an expert's opinion as to a matter susceptible of knowledge is regarded as a statement of fact, upon which reliance may properly be placed, and, if it is made scienter, that is,either with knowledge of their falsity or in culpable ignorance of theirtruth, constitutes remediable fraud." (Italics ours.)
Black on Rescission and Cancellation says: "But the case is different with regard to a false opinion fraudulently expressed. This is actual fraud justifying rescission or relief in equity. That is to say, if a person makes a statement for the fraudulent purpose of deceiving another and thereby inducing him to enter into a contract or assume an obligation, it is a fraudulent misrepresentation warranting relief to the party defrauded, although the statement relates to that which is properly matter of opinion rather than matter of fact, or although the person expressing it puts it forward as his opinion, if he knows it to be falseor does not believe it to be true, or if he does not in reality hold anysuch opinion or holds a contrary opinion." (Italics ours.) 1 Black on Rescission and Cancellation, p. 193, sec. 78. One of the cases cited is Houston v. Darnell Lumber Co., Tex. Civ. App.
In Quebe v. Gulf, C. S. F. Ry. Co.,
There are many decisions in this state in which it was recognized that to render the expression of an opinion an element of actionable fraud there must exist *320
the fact of bad faith. Only a few may be listed as follows: Bank of Washington v. San Benito R. G. V. Ry. Co., Tex. Civ. App.
Some cases may be found which without discussion of any distinction applied the rule relating to representations of fact, but wherein it appears it could have been reasonably contended that the representation was a matter of opinion. Of these in addition to Graves v. Hartford Accident, etc., Co., supra,
The case of United States Pipe Foundry Co. v. City of Waco,
One of the cases relied upon by appellee is Safety Casualty Co. v. McGee,
We recognize that this opinion is extending to a regrettable length. We could have simply cited Moore v. Moore, Tex. Civ. App.
That an interpretation of law be in accord with the reason of the law and with the other laws and recognized principles not intended to be repudiated, should ever be kept in mind. It is the general rule that a mutual mistake of law will not furnish grounds for avoiding a contract. The rule, however, is not so familiar that the release of a cause of action will not be set aside on the ground of mutual mistake as to the extent of injuries. Houston T. C. Ry. Co. v. McCarty,
In our opinion, it is a fan sounder interpretation of the law that representations constituting only the expression of opinion is an apparent exception to the rule, just like a promise to be performed in the future. The latter becomes within the meaning and reason of the law, a false representation when made with intention not to perform, or without intention to perform, while the former becomes, within such meaning and reason, a false representation when not made in entire good faith, — the good faith, of course, being presumed in the absence of evidence to the contrary. The minority rule in this State that scienter, or knowledge of falsity of a representation, is not an essential element of fraud, is applicable to a representation of a pre-existing or past fact and has no application to a representation constituting only the expression of an opinion any more so than it has application to a false promise. Knowledge of the falsity of an opinion or promise is not one of the generally enumerated elements of actionable fraud. But it is an element or quality attached to an expressed opinion or promise necessary to convert the opinion or promise into a representation.
It follows from our conclusions as above stated, in our opinion, the court did not err in rendering judgment for the defendant, that the judgment should be affirmed, and it is accordingly so ordered.