Rehearing denied April 21, 1931 ON PETITION FOR REHEARING (298 P. 244) A petition for a rehearing has been presented in which eminent counsel strenuously contend that this court was in error in the application of the rules of law to the facts in issues.
The gist of the instant action is fraud. We have carefully examined the authorities cited in the petition for a rehearing. None of them are in point nor applicable *Page 150 to the instant case: Houston and T.C. Ry. Co. v. Brown, 69 S.W. 651; Smith v. Great Northern R.R. Co., 139 Minn. 343 (166 N.W. 350); Yeager v. St. Joseph Lead Co., 12 S.W.2d 520;International G.N. Ry. Co. v. Shufford, 36 Tex. Civ. App. 251 (81 S.W. 1189); Haigh v. White Way Laundry Co., 164 Iowa, 143 (145 N.W. 473, 50 L.R.A. (N.S.) 1091); Carroll v. United Rys.Co. of St. Louis, 157 Mo. App. 247 (137 S.W. 303); Blaha v.Chicago N.W. Ry. Co., 119 Neb. 611 (230 N.W. 453); A., T. S.F. Ry. Co. v. Peterson, 34 Ariz. 292 (271 P. 406); Jacobsonv. Chicago, M. S.P. Ry. Co., 132 Minn. 181 (156 N.W. 251, L.R.A. 1916D, 144, Ann. Cas. 1918A, 355); Enger v. GreatNorthern Ry. Co., 141 Minn. 86 (169 N.W. 474); Chicago, R.I. P. Ry. Co. v. Burke, 73 Okla. 258 (175 P. 547); Chicago, R.I. P. Ry. v. Johnson, 71 Okla. 118 (175 P. 494), are not actions brought against physicians for fraud or fraudulent representation, but are all actions for personal injury where the injured party executed a release, generally on the advice of a physician in the employ of the party responsible for the injury, and the different courts held in effect that it was proper to submit the question, as to how the release was obtained, to the jury
The general rule is as stated in Texas Central R.R. Co. v.Neill, 159 S.W. 1180:
"If representations made to secure a release for liability because of personal injuries, were in fact false, the fact that the person making them believed them to be true would not prevent the injured person from having the release set aside."
Francis v. Brooks, 24 Ohio App. 136 (156 N.E. 609), is a case against a dentist for malpractice and not founded on fraud.
The petition for a rehearing is denied.
BEAN, C.J., BROWN and BELT, JJ., concur. *Page 151