(after stating the facts as above). As we construe the testimony, it did not warrant a finding that appellee was not bound by the release he executed on any of the grounds he relied upon, and therefore we think the trial court should have instructed the jury to find in appellant's favor.
One of the grounds relied upon was that a part of the consideration to appellee for the release was the promise of appellant's claim agent, Patton, never performed, appellee charged, that he should have the "gravel pit job." There was no evidence adduced of any such promise by Patton. But it did appear without dispute in the testimony that appellee applied to appellant for that job November 21, 1921, that appellant awarded same to him November 22, 1921, and that the award had not been revoked January 30, 1922, the day appellee executed the release.
Another one of the grounds was that appellee was induced to execute the release by his reliance upon the truth of a statement Dr. Munday made to him when he went to the doctor for treatment about six weeks after he was injured. The statement was that appellee "had a pretty bad knee," but that he (the doctor) could have cured it and had him (appellee) at work if he "had come to him at first." The statement was made about three months before appellee executed the release, and, reasonably, could not have induced him to execute it.
The other ground relied upon as entitling appellee to avoid the release was the statement made to him by Dr. Maxwell, set out above. Whether that statement, if it appeared that appellant was bound by it, when considered in connection with the other testimony in the case, would support a finding that appellee was not bound by the release, need not be determined; for we think it did not so appear. Dr. Maxwell was not employed by appellant. He was not in any sense its agent. He was chosen by appellee and employed by him to treat him. All appellant had to do with it was to pay for the service the doctor rendered.
The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.
On Motion of Appellee for Rehearing. It is insisted that the conclusion reached by us that the testimony did not warrant a finding that Dr. Maxwell was employed by appellant, and acted as its agent in treating appellee and in making the representation complained of, was wrong. We have again read and considered the testimony relied upon as sufficient to support such a finding, and are convinced that the conclusion in question was erroneous, as claimed. We now think there was testimony the jury had a right to believe which would have supported such a finding. But we do not think a different disposition than the one determined upon when the record was first before us should therefore be made of the appeal. There was no testimony indicating that the statement attributed to Dr. Maxwell was not made in good faith, and appellee testified that at the time it was made *Page 1112 his knee "was still swollen and quite painful." The statement, as testified to by appellee, was as follows:
"You are going to be all right. You write Mr. Patton a letter, or go and see him, and tell him I sent you to tell him that I recommend you have the gravel pit job. You exercise your muscles, take things easy for a couple of weeks, and by that time you will be your own self, all O. K., and be in a position to resume your usual work."
As we view it, the statement was not of a fact, but was a mere expression of an opinion the doctor entertained, and was within a rule which has been stated as follows:
"Representations by the releasee's physician as to future results of the injuries, such as the time necessary for or likelihood of recovery, if made in good faith, are mere expressions of opinion and not representations of past or present facts, and, though they prove not to be true, will not afford ground for avoiding a release." 23 R.C.L. 392.
The motion is overruled.
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