
    REASONER v. GULF, C. & S. F. RY. CO.
    (No. 2514.)
    (Supreme Court of Texas.
    May 22, 1918.)
    1. Release <&wkey;52 — Inadequacy of CONSIDERATION — Pleading.
    In an action by servant for injuries, aver-ments that release was procured by defendant by means of representations of its claim agent and surgeon that plaintiff was not seriously injured and would be well in two months, that the representations were made by such claim agent and surgeon as agent of defendant duly authorized to secure the release, that the representations were made for the purpose of inducing plaintiff to execute the release, and that plaintiff believed the representations and was thereby induced to sign and deliver the release, . when in fact plaintiff was then suffering from permanent injuries from which he would continue to suffer, were sufficient, as against general demurrer, to avoid release on ground of false representations.
    2. Pleading <&wkey;21 — Conflicting Allegations — Injuries to Servant — Petition.
    Petition, which, in addition to claiming damages for injuries alleged to be permanent and wholly disabling plaintiff servant sought damages for breach of contract for plaintiff’s continued employment as fireman, did not present inconsistencies and repugnancies fatal to any right of recovery for injuries, since the averment that plaintiff had been wholly disabled physically, and was unable to discharge the duties of any employment, negatives cause of action, attempted to be stated for breach of contract for continued employment.
    3. Appeal and Error &wkey;>1040(3) — Harmless Error — Demurrer—Reversal.
    Where general demurrer, as well as special exceptions, were sustained to plaintiff’s petition sufficient as against general demurrer, judgment will be reversed on plaintiff’s appeal, though he failed to complain of the sustaining of exceptions.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by W. H. Reasoner against the Gulf, Colorado & Santa FS ' Railway Company. Judgment for defendant, dismissing action, was affirmed by Court of Civil Appeals (152 S. W. 213), and plaintiff brings error.
    Reversed and remanded.
    Odell & Johnson and S. C. Padelford, all of Cleburne, for plaintiff in error. Terry, Cavin & Mills, of Galveston, Dee & Lomax, of Ft. Worth, and Brown & Lockett, of Cle-burne, for defendant in error.
   GREENWOOD, J.

The single question on this writ of error is whether a general demurrer was properly sustained to the amended original petition,, whereby plaintiff in error sought to recover damages of defendant in error.

The petition contained allegations which were sufficient to show that plaintiff in error had been damaged in the sum of $7,500 from personal injuries sustained by him, while in the employment of defendant in error, as the proximate result of its negligence. It is contended for. defendant in error that, admitting these allegations to he true, no recovery could be had: First, because the petition, having admitted the execution by plaintiff in error of a release of his claim, for damages; averred no facts sufficient to avoid the release; and, second, because allegations of the petition, seeking to show causes of action for damages arising from breach of a contract to, continue plaintiff in error in the employment of the railway company and to furnish him a satisfactory service certificate, destroyed, through inconsistency and repug-nancy, all the allegations of permanent injury to plaintiff in error, without which he did not show any cause of action. The Court of Civil Appeals sustained the latter contention,

It was averred in the petition that the release was procured by defendant in error by means of representations of its claim agent and surgeon that plaintiff in error was not seriously injured and would ■be well in two months, and that the representations were made by such claim agent and surgeon as agents of defendant in error, duly authorized to secure the release; and it was also averred that the representations were made for the purpose of inducing plaintiff in error to execute the release, and that plaintiff in error believed the representations, and was thereby induced to sign and deliver the release, when in fact plaintiff in error was then suffering . from permanent, injuries to brain and spine, besides other injuries, from which he would continue to suffer all his life. These averments were sufficient, as against the general demurrer, to avoid the release. H. & T. C. R. Co. v. Brown, 69 S. W. 652; H. & T. C. R. Co. v. Bright, 156 S. W. 310.

In our opinion, the petition does not present the inconsistency's and repugnancies which were held fatal to any right of recovery thereon. It is true that, in addition to suing for damages claimed for injuries alleged to he permanent and incurable and arising from the negligence of the railway company, the plaintiff also set up a contract with the company, for his continued employment as a locomotive fireman and for a certain kind of service certificate, and sought to recover damages for breach of such contract. No matter how necessary it may have been for plaintiff in error to have alleged his ability to perform the work of a fireman or to have done some other kind of railroad work, in order to have stated any canse of action for damages for breach of contract, it cannot he held that his petition contained such allegations in the face of its express averments to the contrary. The presence of such express averments negatives the causes of action, attempted to be stated for damages for refusal to continue to employ plaintiff in error or to give him a service certificate on which to seek other railroad employment. The defendant in error properly availed itself of these express allegations when it had the trial court to sustain a special exception to all that portion of the petition setting up plaintiff in error’s wrongful discharge and his inability to secure employment with any railway company by reason of the character of his service certificate “because it appears from the averments of the petition, if there is any truth, whatsoever in the matters alleged, that ever since his claimed injury, plaintiff has been wholly disabled physically and incapable of performing any labor, and was a physical wreck, and therefore unable to discharge the duties of any employment.” In the face of contradictory facts, .plainly stated, the law neither implied allegations into the petition to strengthen it against the special exceptions, nor to weaken it against the general demurrer. The allegations of the petition were ■therefore in no true sense inconsistent or repugnant.

It is insisted that though the general demurrer, standing alone, ought to have been overruled, yet the judgment sustaining it should be affirmed, because no complaint is made by plaintiff in error of the action of the trial court in sustaining 11 special exceptions to his petition.

The question here presented is not an open one in this state, this court having declared in Bigham Bros. v. Port Arthur Channel & Bock Co., 100 Tex. 202, 97 S. W. 689. 13 L. R. A. (N. S.) 656:

“Counsel for defendant in error insists that, although the court may have erred in sustaining the general demurrer, yet the judgment should not be reversed for that reason because some of the special exceptions were properly sustained and the plaintiffs did not amend their petition. The correct rule of practice is thus stated by Chief Justice Willie in the case of Everett v. Henry, 67 Texas, 405 [3 S. W. 566]: ‘We think the petition showed a good cause of action against Henry, and that his general demurrer should not have been sustained. This renders it unimportant whether the special exceptions of the same defendant should have been sustained or overruled. If they were well taken, it would not have served any good purpose to amend the petition to meet the objections raised; for the court, having held the petition bad on general demurrer, would necessarily have .dismissed it, though every special demurrer .had been met and its force destroyed by a proper amendment.’ That learned Chief Justice stated the same proposition even more tersely and forcibly in these words in Porter v. Burkett, 65 Tex. 383: ‘What does it. avail a plaintiff to fortify his petition against a special exception, when the court, in effect, holds that if he does so it is still bad on general demurrer? There can be no use in amending a petition in one particular, when, after amendment, it shows upon its face no cause of action.’ ”

In following the case of Bigham Bros. v. Port Arthur Channel & Dock Co., it is said in Brown v. Davis, 178 S. W. 845:

“In his brief, appellant presents as error only the action of the court in sustaining the general demurrer. The fact that he does not complain of the judgment sustaining the special exceptions is no reason for refusing to reverse the judgment, if upon the whole a good cause of action is shown, even though there may be defects in the form of stating it.”

To eliminate the merely defective allegations, in passing on a general demurrer, would be, in effect, for the court to ignore, as to such allegations, its undoubted duty to consider them as though properly pleaded. The allegations of the petition in this case, given every reasonable intendment in their favor, stated a cause of action in behalf of plaintiff in error, and that is decisive of his right to have the general demurrer overruled. Warner v. Bailey, 7 Tex. 519; Erie Telegraph Co. v. Grimes, 32 Tex. 94, 17 S. W. 831; Blum v. Kusenberger, 158 S. W. 780.

The judgments of the district court and the Court of Civil Appeals are reversed, and the cause is remanded to the district court. 
      <®=3For other oases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes
     