
    ALENKOWSKY v. TEXAS & N. O. RY. CO.
    (No. 601.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 12, 1916.)
    1. Release @=>17(2) — Eeeect — Injuries to Sebv ant — Avoidance.
    Where the injured servant, on being told by-physicians in the master’s employ that his broken bones had set, and that his limb would be as good in a couple of months as ever, signed a release on payment of a certain sum, and the injury was in fact unhealed, and probably would never heal, he could avoid the release and sue for his injuries; the physicians’ statement being a positive one as of an existing fact and not a mere opinion.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. @=>17(2).]
    2. Release @=>17(2) — Injuries to Servant— Eeeect — Avoid anoe .
    The rule that a false representation by the employer’s surgeon as to physical condition of the servant will not justify avoidance of a release where the surgeon has no connection with the settlement, and the claim agent was ignorant of the representation, has no application if the claim agent procured the representation.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. @=>17(2).]
    3. Release @=>58(6) — Avoidance—Question eor Jury.
    Where the pleadings raised the issue of validity of a release for injuries given by the employ® on representations of the employer’s surgeon that he would soon be as well as ever, such issue was for the jury.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 114; Dec. Dig. @=>58(6).]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Ezrel Alenkowsky against the Texas & New Orleans Railway Company. Judgment on peremptory instruction for defendant, and plaintiff appeals.
    Reversed and remanded.
    Graves- & Graves, of Houston, for appellant. Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Paul Kayser, all of Houston, for appellee.
   HIGGINS, J.

Alenkowsky was an employ® of appellee, and on September 7, 1913, while in the discharge of his duties, his left leg was broken about halfway between the knee and ankle. It was alleged that such injuries were caused by appellee’s negligence. He was immediately taken to defendant’s hospital, and remained there until about February 10, 1914, under the care and treatment of defendant’s surgeons, Drs. Knox and E. J. Hamilton. On Dec. 1, 1913, he accepted from the defendant the sum of $600, and in consideration thereof gave a written release of his claim for damages. In avoidance of this release the plaintiff alleged:

“That for the purpose of procuring said release and of inducing plaintiff at that time and under those circumstances to make such nominal settlement, he was taken by defendant railway company’s claim agent, one - Davis, to its chief surgeon, Dr..R. W. Knox, and to his assistant, Dr. E. J. Hamilton, who together had charge of said hospital, and of plaintiff and the medical treatment of him, and then and there procured from each of them, in plaintiff’s presence, the statement and representation that plaintiff was not permanently nor seriously hurt, and that the bones in his leg had properly knitted and united together, that the leg was not hurt, and within two months’ time would be as good and as strong as it ever was, and that he was on the safe side and could safely make said nominal settlement, and that it was a good settlement for his injuries; that said claim agent used said physicians and their said statements and representations, repeating and reciting same to plaintiff, and then and there, upon the basis thereof and faith therein, induced him to make said settlement and to sign said release; that he relied upon said statements and representations as to the state and condition of his injuries and believed them to be true, and would not have agreed to said settlement, nor signed said release if he had not so believed and relied upon the same. But plaintiff now shows to the court that said release is not valid nor binding upon him, and that he was misled and overreached to his injury in so agreeing to and executing same, for the reason that said statements and representations were not true, that the bones in his leg had not then properly knitted and united together, nor have they yet, nor will they ever do so, nor was or is said ieg unhurt or as good as ever, but the same was then, and is now, permanently and incurably crushed, injured, and impaired, and leaves him for life deformed, a cripple, and unable to do any constant or heavy work, and that its condition and the character of his other injuries are in fact as is alleged in paragraphs 8 and 9 of this petition.”

The cause was tried before a jury, and upon the conclusion of plaintiff’s evidence a peremptory instruction was given in favor of defendant upon the theory that an issue had not been raised with respect to the validity of the release. In accordance with this instruction a verdict was returned and judgment rendered in defendant’s favor, and the plaintiff prosecutes this appeal therefrom.

Plaintiff testified:

“After my injury I was taken to the Southern Pacific Hospital in the ambulance. I didn’t ask anybody to send me to the hospital. The hospital belongs to the shops. I stayed there five and one-half months, and was treated by Dr. Hamilton and Dr. Knox, who are the railroad physicians. I didn’t ask for them. They used to come to the hospital every day while I was there. Both bones in my leg were fractured, my left leg, and there was a laceration of the knee on my right leg. No other doctors ever treated me. * * * The -railroad company paid me $600 for this accident. On the 1st of December, 1913, Mr. Davis, the claim agent, offered me $500, and suggested that I call in some friend of mine to consider this matter. I called in Mr. Ditch, who came, and we went up to Mr. Davis’ office. I said that my leg was still hurting me, and I could not use it. Mr. Davis suggested that we go down to the doctor’s office, two floors below his office. Dr. Knox examined my leg, and told me that in two months my leg would be in perfect condition as if it was never hurt; that at the time it was still raw, but at the end of two months I would not know I was ever hurt. I went back to Mr. Davis’ office with Mr. Ditch, and Mr. Davis then offered me $500 on the strength of the doctor’s statement that my leg was in good condition. When I still complained that my leg was not well, Mr. Davis said that he would give me another $100, but I didn’t consent to do that, because I wanted to make sure that my limb would be well. I then left the office with Mr. Ditch, and coming out we met Dr. Hamilton. Mr. Ditch then asked Dr. Hamilton for advice whether to accept this money — particularly, if the leg would be well in the future, then would he advise him to accept the money. Dr. Hamilton stated that this leg is in good shape, and that it was only for a short while that it would hurt any, that after that period he would not know that he was ever hurt, and advised him to make the settlement. This was the same day the settlement was made. I went up to Mr. Davis’ office when I agreed to that, and he gave me a closed envelope and directed me to some other building. I don’t even know which it is. I came up there, and some one read something to me that I didn’t understand and asked me to sign it, and I signed it; then I went up to Mr. Davis’ office and I got my check. Mr. Ditch was present during all of this time. Mr. Ditch went with me to the doctors. I accepted the statement of the doctors that my leg would be in the same condition in two months that it had been. I certainly would not have accepted the $600 if I had not believed the doctors were correct in their statement. Every time I talked with Mr. Davis, the claim agent, about my case or its settlement, Mr. Ditch was with me. Mr. Davis advised or suggested to me to go to see Dr. Knox or Dr. Hamilton. * * The settlement was agreed upon, and the $600 was paid over to me, and the .release to the company for all damages for my injury was executed by me on the day the settlement was agreed upon, December 1, 1913. I saw Dr. Knox at his office that day. At first Mr. Davis offered me $500. After he had spoken to Dr. Knox, he offered me $600. I did not hear what Mr. Davis said to Dr. Knox. He spoke to Dr. Knox in a place where I couldn’t hear what was said. Dr. Knox examined my leg in the presence of Mr. Davis. Dr. Hamilton stood by, but he didn’t examine me. He just watched Dr. Knox make the examination. Dr. Hamilton at that time said nothing. After leaving Dr. Knox’s office I went back to Mr. Davis’ office, where he offered me $600. Mr. Ditch and I went down, and we met Dr. Hamilton as we were leaving the building. At that time I had not accepted Dr. Knox’s advice, and I had not decided to accept the $600. I asked Dr. Hamilton that, since I was offered $600 in settlement of the case, I wanted to know whether my leg would be in the same condition as it ever was, then I would accept these conditions, and he . said that my leg in two months would be in perfectly good condition as it ever was. Dr. Hamilton had examined me before, but that day he merely watched Dr. Knox examine me. He had examined me about one day before that. I talked to Dr. Knox in the Southern Pacific Building, on the doors below Mr, Davis’ office. I came from the hospital on crutches that day.. On that day Mr. Ditch was with me all of the time. When they told me my leg was in good condition, I decided to accept the offer. The doctors told me that the leg was just weak now ; that it would be in perfect condition. They told me that there was a union, and the fracture had grown together.”

Mr. Ditch, a friend of the plaintiff, was present when the doctor’s examination was made and wh'en the negotiations to settle were had with the claim agent, Davis. He testified:

“Before going to Dr. Knox’s office, we had been offered $600. Dr. Knox’s office is in the Southern Pacific Building, and I and Mr. Davis and Alenkowsky went down there to that office. I did not talk to Dr. Knox. Mr. Davis brought Alenkowsky to the doctor, and the doctor examined his leg. I only stood by. I did not say anything then to Dr. Knox. I heard what the doctor said when he examined his leg. Mr. Alenkowsky was' the man what he talked to. Alenkowsky was talking to him. The doctor said: ‘His leg is all right; in a month or so he will be just as well as ever.’ Yes., sir; that is all he said. Dr. Knox said: ‘His leg is all right; he is only weak in his leg from the break, but that he will be all right in a month or so; he will be just as well as ever.’ Tes, sir; that is all he said. Yes; Mr. Davis said something. Mr. Davis said he would settle. Mr. Davis was there when he examined him. I did not hear Davis say anything. Ble did not say anything in the doctor’s office.”

Dr. Gavin Hamilton, witness for plaintiff, testified:

“I examined the plaintiff’s leg some time ago, about three or four months ago, and again on the 20th or 21st of December. He had a fracture of both bones in his leg. The smaller bone had united with about a half inch overlapping. The right bone was still -, showing that there was not a bony union, but the union was fibrous. The larger' bone was considerably bowed from the shortening of the smaller bone. The small bone is overlapped, but united. I took X-ray pictures (which the witness here identifies). In them is shown the lower end of the callous around it. There is a certain amount of movement in the joint, and when the bone is bowed the shortening leaves lesser space. The smaller bone runs along the side of the larger one, and is on the outer side of the leg. The large bone carries most of the weight of the body. The picture shows the most bowed condition of the larger bone. In the smaller bone there seems to be a firm union, but the ends are overlapped about half an inch. There is a swelling over the side of the fracture of the big bone, and a certain amount of mobility. There was fibrous union there. There was no bony union. There should be no motion at the fracture. The joining together of the small bone shortens the leg and renders the condition of the larger bone such that it cannot heal. The two fragments have to bow, instead of being straight. I measured the shortening, which was about half an inch. A half inch 'shortening makes practically little difference in a man’s leg. He can walk, and walk so you cannot even notice him limp, but the lack of bony union in the leg makes it so he cannot do manual labor, and he could not walk without pain, some pain. Of course, the large bone, with the ends in that position, maintains the support, but he could not walk without pain, and the weakness of the leg makes it so he could not be a laborer at all. I don’t see how a man could work with his leg in that condition.
“I believe his injury will be more or less permanent unless his leg is operated on. I believe he will have to have something done to bring about a bony union. I don’t believe there has been a bony union since the leg was fractured. His leg bowed like it is, even if united by a firm bony union, would still be lessened in efficiency, and be more liable to a fracture. It should not cause him pain if there was a bony union; not at the fracture, though it might in the ankle joint. Without bony union, it would cause him pain.”

The pleading and testimony quoted bring the case within the rule announced in Railway Co. v. Brown, 69 S. W. 651, Railway Co. v. Bright, 156 S. W. 304; Railway Co. v. Reno, 146 S. W. 207; and Wingfield v. Railway Co., 257 Mo. 347, 166 S. W. 1037.

Dr. Knox’s statement, testified to by plaintiff, that the fracture had united and the leg in good condition was the positive statement of an existing fact. It carried the idea that a proper bony union had been effected, which is contradicted by Dr. 'Gavin Hamilton. It was not a mere statement of opinion such as was considered in Railway Co. v. Kramer, 141 S. W. 122.

Appellee also invokes the rule announced in Railway Co. v. Huyett, 99 Tex. 630, 92 S. W. 454, 5 L. R. A. (N. S.) 669, that a false representation by a railway surgeon as to the physical condition of an injured party will not justify the avoidance of a release of damages where the surgeon had no connection with the settlement, and the claim agent was ignorant that such representation had been made. This rule is inapplicable here, because it is apparent that the claim agent had full knowledge of the representation, and both parties apparently acted upon the faith thereof.

An issue having been raised respecting the validity of the release, it was error to refuse to submit the same to the jury.

Reversed and remanded. 
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     