*1
933
cause
proximate
negligence
defendant was
the scene
immediately
happened.
it
of the collision.
collision
before
on
The
have
based
answers would
had to he
in 1960
in his article
Calvert
Mr. Justice
belief,
not suf
information or
361, titled
Review,
“No
in 38 Texas Law
Durrett
under Rule
ficient
V.A.T.R.
Evidence”
and “Insufficient
Evidence”
v. Boger,
(Tex.Civ.App.-
returned
Supreme
if the
point
ficient evidence’
lodged
The trial court
some
with
its ‘no
disagree
should
Court
refusing
questions
discretion in
deem the
holding, Civil
evidence’
Court
Harder,
Sanders
148
answered.
v.
wishes,
Appeals may,
indicate
if it
(Tex.1950).
ligence having and causation been estab required, accordance
lished in with the rules
the judgment of the trial reversed court is
and rendered. The clerk transfer the will MITCHELL, Appellant, County. R. L.
case District Court Collin granted In the event a writ should be COMPANY, Inc., al., et C. C. SANITATION Supreme reverse, Court should Appellees. say then we if we reached point factually four on 100. insufficient evi- No.
dence we would hold is so Appeals Civil of Texas. Court of contrary great to the weight preponder- (14th Dist.). Houston ance of the manifestly evidence as to unjust could is some even be said there June 1968.
evidence to Rehearing Sept. 4, 1968. Denied factually rules in considering sufficient evidence are established in King King,
cases as 244 Watson,
S.W.2d and Prewitt v. (Tex.Civ.App.-Amarillo, S.W.2d 954
1958, approved per curiam), Watson
Prewitt,
(Tex.1959). evidence im- from which an
plied finding could been have
negligence truck driver was that
had the east lanes at the time of blocked process making collision wieght
turn to east. great evidence, discussed, as heretofore shows properly in the inter- legally guilty allegations
section of no *2 Musslewhite,
Benton & Musslewhite Musslewhite, Lufkin, for Kemper, Kempers, Houston, W. L. appellees. for JOHNSON, SAM-D. Justice. a summary This is in case Mitchell, brought which the R. L. personal injury damages against action for William W. and C. C. Sanitation Crane Co., damages alleged- Inc. Mitchell’s ly negligence caused of William W. Crane, he, driving while scope truck in the his em- course and ployment Company. for C.C. question, At accident driving truck in the course Mitchell scope Herrin for Transportation Company. Subsequent question, collision signed Mitchell first was in favor of William W. Crane and Company. C. Sanitation It was Transportation both Mitchell and Herrin Company for second $388.65. W. was also favor of William Crane and C. C. Sanitation Mitchell, only and was instant case was Therefore the $62.12. damages but also action releases which action to set aside the had executed favor of appellees.
Appellees, below, defendants filed a mo- asserting summary judgment Mitchell and the acceptance paid pursuant checks any recovery by the releases barred him. court, The trial into consideration taking affidavits, file, depositions alleged As stipulations pleadings and other signed by him sum- because of duress granted the parties, motion imposed upon him denying relief and fraud mary judgment all Company. ployer, question before plaintiff. The essential claim service re- Herrin handled its own is whether or not the record court Hall, name under the have been one Ross C. fact veals a issue of *3 Adjustment appellant of Com- Southwestern Claims would enable the raised which pany. accident, C. After the Hall advised enforceability avoid the of damages Herrin’s Sanitation of Being a case determined sum Mitchell, placed C. C. truck and to and all doubts mary judgment, we must resolve subroga- notice “Herrin’s Sanitation on of as to the existence issue damage in- property for all interest ap- movant, a material fact upon equipment and all work- flicted Bank pellees Tigner v. First Nat. here. payments be- compensation to or on men’s 85; 69, 264 Angleton, 153 Tex. letter, driver, By half of its Mr. Mitchell.” Penn, 412, 252 S. Gulbenkian Hall advised C. C. Sanitation and its accept true the must 929. We W.2d company, Maryland Casualty surance Com- support posi evidence which tends to pany, damage $281.65, of Herrin’s truck disregarding all con appellant, tion of physician, paid that Herrin had Mitchell’s Bell, S. flicts. Cowden v. Cobb, $107.00, Dr. and that Herrin 286; Bolin, 153 Tex. W.2d Smith Hall therefore due Thereafter $388.65. Penn, supra. 271 S.W.2d Gulbenkian Gorski, adjuster advised one Patrick light all the evidence must view Maryland Casualty Company, that Mitchell Valley favorable most to the he, expecting paid to be $62.12 Stockyards Kinsel, Co. v. Mitchell, paid his for his out of doctor Bolin, supra. Ac (Tex.Sup.); Smith v. pocket. which tends cepting as that evidence true Maryland Casualty, acting by and viewing position and Gorski, prepared proposed re- light favorable the evidence in the most in the The first was sum of leases. $388.65 him, presented. following situation Mitchell, be executed and Herrin and Appellant at the time alleged that the second in the sum to be of $62.12 question, driving occurrence only by executed These were Mitchell. scope truck in the course his and then transmitted Hall so from Gorski to Transportation Com- ployment for Herrin that might Herrin and pany. process passing As he was in apparently Mitchell. Hall undertook the defendant, truck another driven responsibility obtaining signa- Mitchell’s Crane, scope course and was in the ture re- on both releases. After the two C. C. employment for the defendant signed they leases were returned Company, defendant’s truck Maryland Casualty Company is- who then negli- warning suddenly and without sued the two checks. The first was mailed defendant, gently the left steered to directly directly Herrin and the second causing the acci- proximately thus during negoti- to Mitchell. At perma- resulted in serious dent which Maryland Casualty ations outlined did him, appellant. Nu- injuries to nent Company adjuster or its Gorski have negligence were specific acts of merous personal with, Mitchell. conversation or see driver, .Crane. alleged against in the allegations damages to of duress and fraud find alleged his damages their primary support deposition $40,000.00, included sum of wages, loss affidavit Mitchell. Ac- suffering, lost pain and cording Mitchell, medi- he Hall’s and future was called to capacity, past earning office and when he went Hall had expenses. cal previously prepared being adequately compensated for the in- Hall did hand. threatened that if Mitchell juries he sustained the accident and not settle re- for the amounts stated in the he sign reason Mitchell, he, them leases leases like those he did would be would be “through,” keep job. By that is he would affidavit Mitchell job. Further, stated, lose Hall that “Ross nothing “I told Mr. just told me pain suffering that was a so me for I had I get money experienced my could for the truck future doctor’s any- keep my but, job.” could “he When asked was insistent that I (bills,” Transportation for Herrin \releases that Herrin so get talked to him about the execution of could for their truck.” Mit- “Well, stated, responded, before chell me “Had not threatened stack my job them Ross Hall blew not have *4 I them. He had sign because refused to His threat caused me to do some- put pressure thing (sign releases) against Eldon Brown call me and was me.” my He then testified that Brown will Eldon own free and accord.” was “second in for Herrin command” alleged Mitchell further that at the time Transportation Company. He further tes- against job, Hall the threats he tified, “Well, I would I was that informed and knowledge, did so with consent sign either these or wouldn’t releases acquiescense company for of the insurance “Now, asked, job.” have a was He Compa- appellees, Maryland Casualty you have anything told else that Gorski, ny, acting through and who was you He re- sign the releases?” caused to alleged Mitchell adjuster. their insurance sponded, didn’t “Nothing except if that did know Gorski get job.” have didn’t no made, threats after such threats (Emphasis added). Maryland Casualty Company accepted the arising by accepting benefits therefrom that during Mitchell stated this conversa- attempting them. releases and to enforce releases, prior Hall signing tion and to Hall, alleged at the time he Mitchell that telephoned C. someone C. representing procured was the execution of Sanitation and and Mr. Crane “What Casualty agent Maryland acting as telephone had said over was that he further, Company. Appellant alleged finally convinced me that it would be better inadequate the fraud basis of and/or words, either to In other was consideration, re- that the amount of the job.” He have a or not solely compensate Herrin leases went to continued, he “Whoever talked to on expenses, Transportation Company phone, prefer he said I to the releases appellant Transporta- and Herrin affidavit, my By job.” than Mitchell lose amount the doctor Company, Gorski, adjuster identified Patrick date; cash was to bills no Maryland Casualty Company, person appellant above men- in addition to the speaking tele- Hall was on the whom Lastly, appellant alleged tioned amounts. phone. Hall’s testified to also appellees and his he, Hall, handling the statements that Transportation Company, in a con- acted matter for C. C. William spiracy coercing signing into him them, working on behalf of leases. them, get- “taking care” of it for ting the them. releases is a general that contracts rule he have obtained coercion are
Mitchell testified that would not duress or applicable this re Hall not him voidable and rule told job Ry. he leases. & going to lose San Antonio A. P. Co. 676, no (Tex.Civ.App.), feel he was Barnett 27 sign, S.W. didn’t that he did
9 n hist.; Rogan writ Traction (3) Southern Co. v. it was the force of this constraint alone, (Tex.Civ.App.), writ 199 S.W. caused do what dismd.; & Southwestern Gas Electric Co. otherwise have do- would not considered compulsion no (Tex.Civ.App.), ing; (4) Cobb S.W. hist.; Herrin, working & Rust writ S. H. Kress Co. v. bear defendant, (Tex.Civ.App.), affirmed 97 S.W.2d concert with the C. Sanita- (opinion tion; (5) Herrin did what another, ei “Any benefit adopted). coercion of- its own economic did mental, otherwise, causing physical, advantage, or the effect of ther effectively contrary free will him to act his own action was terminate good destroy submit to a conditions situation or valid claim otherwise interests, con against possessed his own cause of action volition or ” Hailey & 7duress.’ v. Fenner stitutes singly, “Although employer, acting Beane, 412, no (Tex.Civ.App.) S.W. has the undoubted However, authority stat writ hist. family, the coercion or one of “There duress unless there ing, can no so, arising a threat to do when from party is a threat act which the do some employee to ployed as a means to force the do.” threatening has action he has sign a release (Tex.Com.App.), Dale v. Simon 267 S.W. him or another instituted Ulmer, Ulmer 162 S. *5 unlawful, and, under circumstances County Imp. Dist. W.2d Cameron W. showing means in that such fact overcame County (Tex.Civ.App.), 1No. v. Cameron will, may employee’s resistance and the 491, hist.; v. 134 S .W.2d writ Bute no 743, constitute 751. duress.” 20 A.L.R.2d 302, Stickney (Tex.Civ.App.), 160 S.W.2d reasoning applicable to We believe this ref., m.; writ w. Republic Nat’l Sanders case, though Texas cases the instant no Dallas, (Tex.Civ.App.) Bank of point found, in are believe directly 551, hist.; no Fowler, (Tex. writ authority is otherwise avail- substantial Ap- Civ.App.) 389 730, no writ hist. able. pellee contends that duress be cannot exist Transportation Company cause Herrin was Inc., Motors, In Wise Midtown liberty at at discharge appellant the 735, 20 A.L.R.2d Minn. N.W.2d any any time and de reason so annotation, subject the of the cited A.L.R. sired for he was not shown be more than employee against a brought an an action employee way, at will. Stated another him. prior employer discharged had employer right Herrin had the meeting in prior employer arranged a discharge appellant any the at time employer present employee’s the office of the threat had the to do what present employer told the where the cannot constitute duress “through” if his ployee that he be would fraud. these then Under case was settled. employee
circumstances a the previously prepared been lease which had As the disposition the instant held prior employer. It there was appellee’s case was made motion summary judgment, applying well that, being in be- employee warranted forth, principles previously set known discharge lieving that would find following conclusions release, ques- a if he did him validly helpfully record jury to duress arose. Herrin had made: Co., it In v. Industrial Cotton Mills appellant Holmes discharge D.C., in- desired; very compul F.Supp. a had been (2) there was real wage otherwise, representative sion, vestigation economic and com- employer; and hour of the defendant appellant bear on the division equal footing, employee great com- there was pany. The was stood no told them, disparity and there if he between pany superintendent looked as company equality bargaining positions. job, no lose his since would appellant undoubtedly the weaker job pay had to over- The abolish the company party, very him forty the threat was. time for over hours. employee fully justified expecting into his real and he president then called immediately discharged. office, previously prepared him a he would read to employee if he release, and told addition, Herrin Trans- clear the release would portation Company, had a direct economic then hold his company and that he could employee the re- signing in their interest a matter of law job. there held as doing leases, the reason for employer had used duress the re- company Absent what did. release ducing employee Mitchell, Herrin being leases pay. overtime its truck paid damages to would not be pre- had Co., bills it Ingersoll ($281.65) 109 Colo. or the doctor’s In Huddleston v. portion major viously paid ($107.00). lost 123 P.2d the re- signing alleged negligence received for of the right hand as result of Transportation Com- permitting unguarded went to leases appel- paid being pany, There the machinery be used. farm $62.12 bills doctor’s this sum was for he executed lant. Even plaintiff testified that before urged previously out question, the had foreman in' the accident pocket a result of com- sign it because the defendant him to of, consideration damages, question. There was liable in no pany would not be for, important insurance, compensation if he the most and that nor compensation suffered damages allegedly elements would lose sign, did not he and others physical mental suf- held that there was these jobs. It was there *6 capacity pain suffering reduced to warrant ficient evidence to submission the not to work. whether or jury the on the issue of con- employer signed for a of the in the In evidence rec- addition is a $30.00, signed as sideration of properly be might con- ord from which it fraud, mistake, or duress. of sult the defendant C. C. Sanitation cluded that and com- knew constraint of the Fitz- of Delaware v. In Perkins Oil Co. pulsion applied that was to an
gerald, 197 Ark. it, participated in and later employer, at cotton was an oiler a employee accepted its economic benefits. in a machine mill arms seed oil lost both the em- induce at the mill. To accident opinion is the majority It the of of mill company, the ployee to release right of an this that even where court he consulted superintendent told him that if ,an employee un discharge is company, attorney, an or tried sue may be ex questioned, duress and coercion plain- support of step-father, the sole threats dis ercised discharged, mother, would be invalid tiff’s charge employee, circumstances where his re- prevent company would appear. presented are such as here any like business. employment other employer with the that an cannot conclude war- held sufficient Such evidence employee opportunity oppression for on ques- jury rant submission to power may for appears, use such here employee whether tion of interest, yet con duress or coercion. release under coercion question duress clude that no or of inequality op- there is such arises. Where bar there was obvious at In the case benefits, terms, of be in the sacrifice oppression to portunity employee, inade- rights part of the parties employee. The consideration, quacy advantage terminate of Mitchell’s without any follow, con- party, fortiori, taken of the weaker cannot a we cause. It should duress employ- clude that no fact situation of or had a to terminate his coercion exists. ment unless he would take such action permit them to their recover on opinion majority is this It my opinion claim. their conduct would court that under circumstances they, subj having more ect attack presented co- the existence duress and matter, financial interest in the had threat- ercion sufficient avoidance of personal ened to fire Mitchell because of which, fact, issue releases was spite simply ill will or because by the There was raised record. permitting Maryland Casualty Com- fact, applicable such issue under the law pany to avail itself a lawful this must be summary judgment, cause will, they, employers reversed and remanded. had. and remanded. Reversed situation, As actors carrier and the acting each TUNKS, J., dissenting. dividually, acting within concert, rights, they, acting so were Dissenting Opinion within the The ma- bounds lawfulness. jority opinion prop- authorities cites TUNKS, Chief Justice. employer’s osition that an threat to dis- charge at will is duress. respectfully dissent. any Neither other threat to other lawful act duress. It assumed accurately of this case are The facts supports finding the record of fact to facts majority opinion. Those stated Maryland Casualty Company effect Compa- Casualty Maryland show pay Mitchell had refused Herrin until appellees, confront- ny, insurer the purpose settled claim induc- by two differ- ed with two claims asserted ing Herrin to exercise its influence growing accident. ent claimants out one getting Mitchell settle for amount claimant pay declined The carrier Maryland Casualty offered. At least Com- con- claim settled. Its until other pany got the benefit Herrin’s exercise of all respect not at unrea- duct in that Maryland Casualty Compa- its influence. important that an sonable. obvious *7 however, ny, did not induce Herrin to claims is factor in the settlement in- something threaten to do unlawful to be incur- possible expense to avoidance of fluence Mitchell settle. The carrier could defending red suits. in that fully the benefits avail itself of is the contention that Nor and defend- settling claim respect by involuntary settlement because was conduct did the ing the Not other. compulsion sound. made under economic exercise reasonable carrier constitute a McKee, Patter General Contractor conduct but was judgment of business son, it was legal rights. clearly within acceptance or re held that a workmen’s taining in the face of known place emphasis majority seems to voluntary appreciated dangers to the financial on the fact that necessity done under the though terest of Thus, Mitchell’s earning a livlihood. claim. plaintiff release his get the losing his settlement of claim to avoid sustaining the emphasize that fact nevertheless, voluntary. job was, conduct, validity propriety Herrin’s the trial is uncontrovert- affirm the tainting than rather to court. had the lawful ed that Herrin