138 Ark. 91 | Ark. | 1919
Appellee recovered judgment to compensate an injury sustained by her while traveling as a passenger on one of appellant’s trains; and only two errors are assigned for the reversal of the judgment.
The first is that the court erroneously refused to permit appellant’s claim agent to testify “that at the instance of the-appellee’s agent, designated by her in his and the agent’s presence, the agent went to see Charlie Winslow, her son and agent, and they agreed upon a settlement by the appellant paying to him, as appellee’s agent, $100, upon condition that Dr. Copeland, who was appellee’s physician, should give a statement to justify the claim agent’s action in paying the railroad company’s money. That Dr. Copeland not only declined to make the statement, but advised Charlie Winslow not to accept the money, and further advised him to refrain from making a statement in connection with the alleged injury. No money was paid and no agreement was made by Mrs. Winslow except through her son, Charlie Winslow, who was her agent, and no agreement was put in writing.”
It sufficiently answers this contention to say that Dr. Copeland refused to give a certificate; and if there was an accord, there was no satisfaction thereof. Appellee could never have maintained a suit on the executoryagreement sought to be proved; nor can appellant rely upon it to defeat the cause of action which it was proposed to settle. St. Louis & San Francisco Ry. Co. v. Mitchell, 115 Ark. 339; Lewis v. Arnn, 127 Ark. 106.
The second assignment of error is that the verdict— which was for $1,500—is excessive. This assignment cannot be sustained in view of the testimony offered on appellee ’s behalf, to which we are required to give full faith and credit in testing its legal sufficiency to support the verdict. This testimony was to the effect that appellee, who is seventy years of age, was suddenly and violently thrown from a slowly moving train; that she fell and injured her back and hips either in the fall or while she was being dragged after the train was set in motion, and was confined to her bed about four weeks as a result of the injury, during all of which time she suffered considerable pain. That she continues to suffer pain and has frequent headaches as a. result of the injury, and that these headaches are so violent as to cause the head to be drawn backwards. That there is a partial paralysis of her right leg as a result of these injuries, and that she frequently falls while attempting to walk. Dr. Copeland, the witness who refused to give the certificate upon which a settlement for $100 would have been made, testified that it was not likely that appellee would ever recover from the result of her injuries, and that they were probably permanent. The evidence in appellee’s behalf was that she was in good health and active for a woman of her age prior to her injury.
No prejudicial error appearing, the judgment of the court below is affirmed.
