Missouri, K. & T. Ry. Co. of Texas v. Ellison

LEVY, J. (after stating the facts as above). [1] Appellant contends by its third assignment of error that the requested peremptory instruction should have been given, because the evidence conclusively „ shows that the settlement made between appellee and appellant on September 30, 1913, was fairly and honestly made, without any fraud or deceit. Considering the entire testimony, it is believed that this court may not hold that, as a matter of law, there are no circumstances of overreaching shown in effecting the settlement, and for that reason the trial court properly passed the question to the jury for decision. Railway Co. v. Huyett, 49 Tex. Civ. App. 395, 108 S. W. 502; Railway Co. v. Reno, 146 S. W. 207; Railway Co. v. Brown, 69 S. W. 651. See principle, Railway Co. v. Jowers, 110 S. W. 946. And it is further concluded that this court may not properly disturb the finding, as involved in the verdict of the jury, that plaintiff had been overreached and induced to relinquish a claim for further compensation. French v. De Moss, 180 S. W. 1105. Therefore assignments of error numbered 4 and 5 are overruled. [2] In the facts it is thought that the jury may find negligence on the part of the engineer, and that the verdict should not be overturned, and therefore assignment of error No. 6, contending that there is no negligence shown in the case, should be overruled. [3] The court charged the jury as follows: “If you find for the plaintiff, the measure of his damage will be such sum as will now in cash reasonably compensate him for the physical pain and mental anguish which he has suffered, if any, and such further sum as will now in cash reasonably compensate him for physical pain and mental anguish which he will reasonably and probably suffer in the future, if any, and for his diminished capacity to labor and earn money from the date of the injury to the time of the trial, if any; and if you find that his injuries, if any, are permanent,- then you will allow him such further sum as will now in cash reasonably compensate him for his diminished capacity to labor and earn money in the future, if any. However, $1,320, the sum received by plaintiff from defendant, with 6 per cent, interest from date of payment, should be deducted from such sum, if any, that you may find.” The jury returned the following verdict: “We, the jury, find for the plaintiff, and assess his damages at $7,500.00.” And the court refused the appellant’s motion to enter judgment on the verdict of the jury in favor of the plaintiff for the difference between $1,320 and interest thereon and $7,500. Appellant contends, by proper assignment of error, that such ruling of the court was erroneous because the verdict of the jury was clearly a general finding only of the aggregate amount of the damages suffered by appellee, and was not a finding of only the difference found due after deducting the payment of the $1,320 and interest thereon. The verdict does not clearly show a finding of only the difference after deducting the payment, and it is thought that, under the circumstances of this particular case, it is more reasonable to assume that the jury did not, rather than that they did, intend to make the finding of only the difference after deducting the $1,320 and interest thereon. The charge of the court generally states to the jury that the deduction should be made, but it does not expressly say to them that they must do so. It may be that the jury could reasonably have interpreted the instruction as meaning that the court, and not the jury, should make the deduction. In this view, and considering the wording of the verdict, it is concluded that the verdict should be construed in this particular case as a general verdict only naming the amount of damages found- due appellee. It is believed the court should have made the deduction and allowed judgment for the difference. This court may enter the judgment in this respect that the trial court should have entered. Therefore the judgment will be modified so'as to allow recovery by appellee of the difference after deducting $1,320 and interest thereon at 6 per cent, per annum from September 30, 1913, from'$7,500. Appellee will pay cost of appeal. We have considered all the assignments not mentioned above, and think they should be overruled. Modified and affirmed. Footnotes [1] <g=s>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes