The question involved in this appeal is, whether or not the trial court was warranted in giving an instructed verdict in favor of appellee, accordingly entering judgment against appellant. It is settled law in this State, and the observations here made will be weighed in the balance, that it is only where there is an entire absence *Page 440 of testimony as to show allegation in plaintiff's petition necessary to a recovery, or where the facts proven leave no room for ordinary minds to differ as to the conclusion to be drawn therefrom, that a court should peremptorily instruct the jury.
Appellant, by pleadings and evidence, bases his right to set aside the compromised settlement agreement in this case on the sole ground that appellee's agent, Perry Davis, by "false, fraudulent, and deceitful representations" induced him to make the settlement agreement. On this basis, appellant testified that "at the time I signed this statement, on July 23, 1935, Mr. Perry Davis told me that I was suffering from an arthritic condition which was caused by my teeth, and he is the only one, so far as I know, that had any connection with the Dallas Power and Light Company, or the Texas Employers' Insurance Association that made those representations; he made those himself." Prefacing that statement, appellant said: "I saw Mr. Davis when I got to the office and he had the report from the doctor; he says, `I got your report from the clinic' and, he says, `everything is negative but your teeth,' he says, `that is the only thing, they say, that is what is the matter with you * * *'; he said, `well, if they were mine I would get everyone of them pulled out as soon as I could.'" On the above statements alone, appellant hinges his suit to avoid the written compromise settlement agreement, which was approved by the Texas Industrial Accident Board.
It is uncontroverted that the Samuell Clinic, to which appellant was sent by appellee's agent, made a physical examination of him and reported its findings and conclusions to Mr. Davis; and, there is no contention made, either in pleadings or proof, that Mr. Davis made false statements as to the report and the findings of the Samuell Clinic. Mr. Davis was not a physician, made no physical examination of appellant and was not possessed of any superior knowledge of the cause of appellant's aches and pains. The only information Mr. Davis had as to appellant's condition was the report of the Samuell Clinic, and in conversation with appellant he related merely the report as given to him. Mr. Davis testified, and there is not a centiliter of testimony to the contrary, that he talked to Dr. Musick, a dentist of the Samuell Clinic, and Dr. Musick said to him "that he thought the trouble was due to his teeth" and, he said, "I passed that information on to Mr. Kennedy, and I was convinced, in my own mind, that was true." He further testified: "I also talked to Dr. A. R. Thomasson (a physician on the staff of the Samuell Clinic) and he told me the trouble was due to his teeth, and I also passed that information on to Mr. Kennedy."
To be guilty of fraud, inducing a compromised settlement of a claim under the Workmen's Compensation laws of this State, Vernon's Ann.Civ.St. art. 8306 et seq., it is universally held that it is necessary to show first, that the party guilty of the fraud knew or should have known that his representations were untrue, and that the plaintiff believed and relied upon such false representations to his injury. Under the related facts of this case, how can it be said that Perry Davis perpetrated a fraud upon appellant, when he truthfully related what the Samuell Clinic had reported to him; and, from that information, extended advice as to what to do and when to do it? The question, I think, suggests the answer. There can be no fraud or deceit, where the statements relate truths. There are neither pleadings or proof that the Samuell Clinic was guilty of fraud or that there was a mutual mistake in diagnosing the cause of appellant's pains.
In Texas Employers Ins. Ass'n v. Watkins, Tex. Civ. App. 90 S.W.2d 622, the jury found that the insurer's physician told plaintiff that his spine was not injured, whereas, in fact, it was; that the physician did not know the condition of the spine; that the plaintiff relied on that statement, thereby induced to settle a compensable claim. The findings of the jury in that case were based on testimony very similar to that introduced here. The plaintiff testified that he was examined by a Dr. Heyman, agent for the Insurance Company, at the request of J. C. Ward, claim agent for the company, and that Dr. Heyman told the plaintiff that he would be able to go to work in a couple of weeks or a month at the outside; that plaintiff had suffered a sprain or strain of his back, but he did not think it was spinal injuries. A comparison of the testimony in the instant case shows a decidedly less ground to avoid a compromise settlement than the facts in the above cited case. In that case, the Fort Worth Court of Appeals said [page 625] :
"Even though it be said that the jury was authorized to find that plaintiff relied *Page 441 solely on the statements by Dr. Heyman with respect to his injuries to the exclusion of the advice theretofore given him by Dr. Parrish, whom he himself first selected, yet the foregoing testimony shows beyond doubt that Dr. Heyman's statements were expressions of opinion only, and that he did not in fact know the condition of plaintiff's spine, all as found by the jury. And therefore those findings could not furnish a proper basis for cancellation of the settlement on the ground of fraud. Commercial Casualty Insurance Co. v. Hilton, supra; Quebe v. Gulf, C. S. F. Ry. Co., 98 Tex. 6, 81 S.W. 20, 21, 66 L.R.A. 734, 4 Ann.Cas. 545; Goodwin v. Texas Employers' Insurance Ass'n (Tex. Civ. App.) 73 S.W.2d 660, 661; Lloyd v. Junkin (Tex. Civ. App.) 75 S.W.2d 712, 714, and authorities there cited, including Barrett v. Featherstone,89 Tex. 567, 35 S.W. 11, 36 S.W. 245; Wortman v. Young (Tex. Civ. App.)221 S.W. 660; Laybourne v. Bray Shifflett (Tex. Civ. App.)190 S.W. 1159; Landrum v. Thomas (Tex. Civ. App.) 149 S.W. 813; Horton v. Smith (Tex. Civ. App.) 145 S.W. 1088; El Paso Southwestern Co. v. Kramer (Tex. Civ. App.) 141 S.W. 122 (writ refused). See, also, notes of decisions on the subject of setting aside compromise settlement for personal injuries on the ground of fraud, 48 A.L.R. beginning on page 1486."
In Texas Employers' Ins. Ass'n v. Manning, Tex. Civ. App. 299 S.W. 534, the jury found that the compromise settlement had been procured by the fraudulent representations of the defendant's physician as to the extent and character of plaintiff's injuries. The evidence showed that the physician had told the employe that he was suffering from a fistula of long standing; other physicians who had examined the plaintiff testified to the same effect. The Beaumont Court of Appeals held that the finding that the defendant's physician had been guilty of fraud and that that fraud had induced the execution and delivery of the agreement was wholly without support in the evidence. The facts in the above cited case are similar to the facts in the instant case, except here, it is not charged that the physicians of the Samuell Clinic were guilty of fraud in diagnosing the cause of appellant's pain in the back, but the suit is wholly predicated on the statements made by Perry Davis, as to what the clinical report showed.
In Indemnity Ins. Co. of North America v. Sterling, Tex. Civ. App.51 S.W.2d 788, the plaintiff alleged that at the time of executing the compromise settlement, he did not know his true physical condition, that the defendant's agent did know it and concealed it from plaintiff, representing to the plaintiff that he would recover, and that the plaintiff believed and relied upon that representation. The jury found that the plaintiff did not know his true physical condition, that the defendant's agent did know it and concealed it from the plaintiff, and that the plaintiff believed in and relied on the false representation and would not have settled but for it. The Beaumont Court of Appeals said [page 790]: "On the undisputed evidence, the jury's findings that W. Hilton Berger knew the true physical condition of appellee and concealed that fact from him, at the time of the settlement, and that appellee did not know his true physical condition and would not have made the compromise settlement if he had known the nature and extent of his injuries, did not constitute actionable fraud. This is so because, on the undisputed evidence, appellee did not deal with W. Hilton Berger on this phase of his case, on a confidential basis. He did not rely upon Berger to furnish him information as to his true physical condition, but employed a doctor for this purpose and a lawyer to advise him of his legal rights, and on their advice made the settlement. The judgment of the court, therefore, has no support in the jury's answers to questions 4 and 5, and plaintiff's specially requested issue No. 1."
This is strikingly similar to the facts in the instant case. Appellant here sought medical advice of his own, and well knew that Perry Davis had made no examination of him and had no independent knowledge as to his condition other than the report from the Samuell Clinic. Appellant was not dealing with Davis on a confidential basis, as Davis did not profess to know what was the matter with him, only expressing an opinion based on reports furnished to him.
In my opinion, the majority decision in the instant case is contrary to and in conflict with all adjudicated cases in this State dealing with the issue of fraud to avoid compromise agreements, which have been approved by the Texas Industrial Accident Board; and, in my opinion, is not in keeping with letter and spirit of the *Page 442 Workmen's Compensation Law (Acts 35th Leg. ch. 103, part 2, § 12; Vernon's Ann.Civ.St. art. 8307, § 12), reading: "Where the liability of the association or the extent of the injury of the employe is uncertain, indefinite or incapable of being satisfactorily established, the board may approve any compromise, adjustment, settlement or commutation thereof made between the parties."
In the light of this record, obviously, appellant's injury, if any, was uncertain, indefinite and incapable of being satisfactorily established; the symptoms were purely subjective — pain in the side and back — which could not be seen or felt, therefore, in the absence of fraud, of which there is not a centiliter of testimony, the parties had a legal right to make the settlement, and the courts of this State are not clothed with authority to set it aside without cause or reason. Before the settlement agreement was signed, appellant went to see his own family physician, Dr. Fry, who made an X-ray of his back, and to his own dentist, Dr. Jordan, who advised him of the condition of his teeth; and, before the final order of approval was entered by the Industrial Accident Board, and before he had collected from appellee the $150 of the settlement, he had all of his teeth pulled by his own dentist, Dr. Moore.
Furthermore, it is believed that the judgment of the trial court should be affirmed for the reason appellant failed to prove that he filed a claim for compensation with the Industrial Accident Board within six months after the alleged injury, and before the filing of the suit. It is settled law in this State that where a claimant has wholly failed to file a claim for compensation with the Industrial Accident Board, such failure is fatal to his cause, irrespective of the issue of fraud, to avoid a compromise settlement agreement. The filing of an agreement with and the approval by the Board does not satisfy the requirement of the law.
In Erickson v. Texas Employers' Ins. Ass'n, 105 S.W.2d 459, the Galveston Court of Civil Appeals held that the filing of a petition with the Industrial Accident Board to set aside an award denying employe's application to set aside a compromise settlement agreement was insufficient as a claim for compensation, or to show a meritorious cause for failure to make the claim, notwithstanding the allegation and proof showing that the compromise settlement was obtained by fraud, and that the claim was filed with the Board within reasonable time after discovering the impositions practiced on the employe. Citing in support of the holding, the following authorities [page 462]: "3 Black on Rescission and Cancellation (2d Ed. 1929) sec. 567; Russell v. Industrial Transp. Co., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 51 A.L.R. 1; Dowlin v. Boyd (Tex.Com.App.) 291 S.W. 1095; Hoeldtke v. Horstman,61 Tex. Civ. App. 148, 128 S.W. 642 affirmed Hill v. Hoeldtke,104 Tex. 594, 142 S.W. 871, 40 L.R.A. (N.S.) 672; Baden v. Deragowski (Tex. Civ. App.) 7 S.W.2d 123 (writ of error refused); Schuermann v. Union Central Life, Ins. Co., 165 Mo. 641, 65 S.W. 723; article 8307, § 4a, R.S. of Tex.; Maryland Casualty Co. v. Johnson (Tex. Civ. App.)87 S.W.2d 342 (writ of error refused); Ocean Accident Guarantee Corporation v. Pruitt (Tex.Com.App.) 58 S.W.2d 41; Texas Employers' Ins. Ass'n v. Whiteside (Tex. Civ. App.) 77 S.W.2d 767; Texas Employers' Ins. Ass'n v. Palmer (Tex. Civ. App.) 66 S.W.2d 454; Texas Employers' Ins. Ass'n v. Schoeppel (Tex. Civ. App.) 10 S.W.2d 405."
The evidence in this case is undisputed that appellant suffered the alleged injury on May 13, 1935, that he saw Dr. Powell, his own physician, in September, 1935, when he learned from him that he had received injury to his back; and, again in November, 1935, he learned from Dr. Kilgore, to whom he had been sent by his attorney, the full extent of his alleged injuries. This suit was filed on May 5, 1936. Appellant admits and the proof so shows that no claim for compensation was ever filed with the Industrial Accident Board, and no reason advanced for such failure. Therefore, since the proof was lacking in such prerequisite to confer jurisdiction on the trial court — wholly failing to show facts essential for compensation under the law, in that, appellant failed to prove that any claim for compensation had ever been filed, or good reason shown for not having filed his claim therefor — appellant's averment to the effect that the compromise settlement had been obtained by fraud and the settlement had been approved by the Industrial Accident Board, did not comply with the law, thus the setting aside of the compromise settlement agreement would avail appellant nothing. *Page 443
The pleadings and evidence also fail to show a tender-back of the consideration of $150, for the compromise settlement agreement, or present a willingness or offer to do equity in reference thereto. This is also fatal to appellant's cause of action. Casualty Reciprocal Exchange v. Bryan, Tex. Civ. App. 101 S.W.2d 895. The majority opinion concedes merit in the proposition that a prerequisite to the cancellation of a compromise settlement agreement is a tender-back of the consideration received, placing the other party in statu quo, or pleadings containing allegations excusing plaintiff from such duty. I am in accord with that pronouncement. The proof discloses no tender nor do appellant's pleadings make allegations with reference thereto. Indeed, if plaintiff's allegations and proof fail in such essential prerequisite, obviously, the trial court did not err in instructing the verdict, accordingly entering the judgment, from which this appeal is prosecuted.
The trial court could not do more and, certainly, should not have done less, when an essential element for recovery is not present in plaintiff's pleadings or evidence; and, it is not believed that it is within the province of appellate courts to reverse the trial court's judgments to, perchance, enable plaintiff to properly plead and prove essential prerequisites of a law suit.
For the reasons above stated, I believe the judgment of the trial court should be affirmed.