I am unable to agree with my associates in all the conclusions reached by them in their opinion affirming the judgment of the lower court in this case. With due regard for their feelings and deep respect for their ability, I register this, my dissent.
In my humble judgment, the evidence in this case is wholly insufficient to support the findings of the jury, and the judgment of the court rendered thereon should be reversed and rendered in favor of appellant.
While I do not agree with all the conclusions reached in the majority opinion relating to the other phases of the case there discussed, I will address this dissenting opinion to the insufficiency of the evidence to support the judgment of the lower court. With regard to the evidence upon which it is sought to set aside the settlement agreement and receipt the following are the salient facts:
"He came in the office and said he had Dr. Good's report, and the papers ready for a settlement; and my father asked him if he had the report with him that he would like to see it. He let him read it, and he said — `Let's see, when was the first day you hurt your back,' and I told him January 30. He says: `Now, what day was it you went down to the warehouse,' and I told him I went down to the warehouse on April 19. He began to enumerate the weeks and said: `Do you know how this compensation insurance is figured,' and I told him I didn't, and he said that he did. He asked my father if he knew, and he said he didn't. He said that he did, and that he made these adjustments from time to time for the Casualty people, and that it was figured on the basis of the earnings the prior year, on a weekly basis, and he began to enumerate the weeks, and said it figured $133.00, but that they had to figure it in the multiple of five, and he would have to pay me $135.00, and that was all I was entitled to under this compensation law, because they did not pay any partial disability after I went to work at the warehouse, that it wasn't like any other insurance, accident or any other, paying partial disability. He told me this $135.00 was all I was entitled to, and I told him if it was all I was entitled to, it would be all. I turned and told my father the amount of the settlement and father said it settled it, and he said `sign this, it is a matter of form. The big boys have to sign it.' He then turned to my father and asked him what his bill was for services, and father said it would be pretty hard for him to enumerate the cost, that he went to see me lots of times when probably I didn't need attention. Dr. Mann suggested the price, and my father said `If you think that it is all right, it would be all right with me,' and it was either $25.00 or $30.00, I don't remember which. He told my father that he would receive his check in a short time, by return mail, and he turned to me and said that I would receive mine within a few days, and that was all that was said. I believed his statements. I believed them from the previous conversations with him, and his saying or telling me the connection between the Magnolia Petroleum Company and the Safety Casualty Company and the man he sent here to talk to me. I did not at that time know what I was entitled to under the Workmen's Compensation Act of the State of Texas."
The testimony of Dr. McGee, father of appellee, with respect to the settlement agreement and receipt, is practically the same as that of appellee quoted above. The settlement agreement and receipt were executed on May 31, 1933, the appellee's *Page 526 employment was terminated by the Magnolia Petroleum Company on August 31, 1933, and suit was filed by him against appellant on August 31, 1933.
It was on the second visit of the agent Mann that appellee claimed the fraud was practiced upon him. It will be noted from the evidence set out above that the appellee contends that agent Mann told him that under the Compensation Law he was entitled to only $135, and that he (Mann) knew how to figure compensation under the Compensation Act, and, further, that the compensation insurance was different from the ordinary accident insurance, in that no payment for partial disability was allowed. This statement, at most, it seems to me, was but an opinion of the agent Mann as to what the law was with respect to appellee's claim under the Compensation Act (Vernon's Ann.Civ.St. art. 8306 et seq.). The evidence wholly fails to show that there was any fiduciary relationship between Mann and the appellee. Appellee was thirty-two years of age, and, so far as this record discloses, was in full possession of all his faculties. He had been working for himself, so to speak, since he was nineteen years of age. He had training in electrical engineering and had two years in college with business training. The record further discloses that he was wholesale and retail agent for Magnolia Petroleum Company in the town of New Boston, Tex., and had been such for two years prior to his injury. And, so far as this record discloses, he had never met appellant's agent Mann until his first visit to see appellee after his injury in January. There is nothing in the record to show that Mann forced the appellee to sign the agreement and receipt sought to be set aside. It is not contended that he even insisted that the appellee should sign the instrument sought to be canceled. On the first visit to see appellee Mann told him that he was in no hurry to make a settlement, and he in no way prevented appellee from informing himself as to the law governing his injury, but gave him ample opportunity to do so between his two visits. The fact is, the appellee did, some time after the settlement, proceed to inform himself with respect to his rights under the Compensation Law by securing and reading the same; thus doing at a later date what he should have done before signing the settlement agreement and receipt. There is no hint in the evidence by any one showing any circumstances that obliged appellee to settle on Mann's last visit and on terms proposed by Mann. Common prudence, it seems, would have compelled appellee to realize that he was dealing with his adversary, who would make the best bargain possible, and that he could not look to Mann for any aid or advice which would be advantageous to him (appellee) and against Mann's employer. In the case of National Fire Ins. Co. v. Plummer (Tex.Civ.App.) 228 S.W. 250, 252, it is said:
"In the view we take of the point here under consideration, it is unnecessary to go more at length into the evidence as disclosed by the record. It is manifest that the parties, in making this settlement, were dealing at arm's length; that a controversy had arisen between them as to whether there was liability on the part of the insurance company under its policy issued to appellee, the company claiming, through its agent, that there was no legal liability and the appellee insisting upon the payment of his policy. The record discloses, without dispute, that appellee, at the time the compromise and settlement was reached, knew every material fact relative to the fire and loss of his goods and furniture that were known by appellant or its said adjuster; that no material fact relative to the company's liability under the policy was withheld or attempted to be withheld from appellee to induce the settlement, and there is nothing in the record which suggests that appellant's said agent stood in any fiduciary relation or capacity to appellee in making the settlement, nor is there anything disclosed by the record which was calculated to cause appellee to repose in appellant's adjuster any special confidence; but, on the contrary, the evidence clearly shows that appellee knew, in making the settlement, that appellant's adjuster was acting in its interest, and that he would `drive the best bargain he could for his company.' So the whole point, as we see it, is this: Did the statement by appellant's agent, Kinney, to appellee, to the effect that the insurance company was relieved of liability under the policy, for the reason that the insured goods had been removed from the location where insured to another location without notice to appellant and without its consent, constitute such fraud or deceit on the part of *Page 527 appellant's said agent as would relieve appellee against such settlement and compromise, and permit him to recover on the original policy? It is our opinion that the statement made by Kinney to appellee, to the effect that there was no legal liability on the part of appellant, for the reason that the goods and furniture had been removed, as above stated, amounted to no more than the expression of a legal opinion entertained by Kinney, and did not amount to the statement of any fact whatever. And we are further of the opinion that since appellee had full knowledge of all the facts relative to the subject-matter, concerning which the compromise and settlement was made between the parties, and since appellant's adjuster, Kinney, sustained no fiduciary relation toward appellee, and with the knowledge of appellee was acting for the best interest of his company in making the settlement, and since there was nothing in the relation of the parties calculated to inspire in appellee any special confidence in appellant's said adjuster, appellee, in action upon the legal opinion of said adjuster, in making said settlement, did so at his peril, and cannot be permitted to set aside and cancel the agreement and settlement so made by him on the ground, as specially pleaded by him, that appellant's said adjuster, Kinney, was guilty of fraud and deceit, which caused him to agree to such settlement. Appellee was as conclusively fixed with knowledge of the law governing his rights under the policy as was appellant's adjuster, Kinney, and cannot be heard to deny such knowledge of his legal rights, and cancel and set aside the settlement on the ground, alone, as specially pleaded by him, which was, in effect, that appellant's adjuster had fraudulently and deceitfully misrepresented the law to him, in the absence of a showing by him that appellant's said agent sustained a fiduciary relation to him, or that the relations of the parties were such as to inspire such confidence on his part in appellant's said adjuster as ought, in good conscience, to relieve him from relying and acting upon the opinion of said adjuster touching his legal rights under his policy. We have shown above the precise attack made by appellee upon the settlement made with appellant's adjuster, and it is clear from his pleading in that connection that his only ground of attack was that the settlement had been induced on his part by false and fraudulent representations on the part of appellant's said adjuster, Kinney, as to appellee's legal rights under his policy, and in the very nature of things, such representations could be but the expression of a legal opinion of said adjuster touching appellee's rights under his policy.
"We might add here that, while it was alleged by appellee, substantially, that the said adjuster, Kinney, at the time he expressed his legal opinion to appellee regarding his rights under the policy, he also read excerpts from some book or pamphlet which purported to be the law pertaining to appellee's rights under his policy. Upon the trial, however, it was admitted by appellee that he was mistaken in his allegation that said adjuster, Kinney, had read to him any such book or pamphlet, as alleged, and therefore that portion of his attack, as made by his special plea, upon the settlement in question was not sustained by any proof. But even if it had been shown by proof, as alleged in the special plea, that such book or pamphlet was exhibited and read to him by said adjuster, we fail to see how it could have availed appellee to any extent in setting aside the settlement, under the facts in this case and the relations of the parties, as we have above stated them. Before appellee would be entitled to recover the balance claimed by him to be due under the terms of his policy, it was incumbent upon him, of course, to plead and prove such facts as would authorize setting aside and cancelling the settlement made by him with appellant, and if he has failed to do this the settlement must be upheld, and a recovery denied him under the terms of the policy."
The Supreme Court of Maine in the case of Thompson v. Phoenix Ins. Co.,75 Me. 55, 46 Am.Rep. 357, says:
"The first count of the declaration sets forth that the company, `well knowing the premises, but intending to cheat and defraud the plaintiff out of the benefit of his said policy, and the money due him thereon, fraudulently and deceitfully represented to the plaintiff, that by reason of his not living in the house at the time of its being burned, he had so increased the risk that the company was not bound to pay anything, that the policy was null and void and of no effect, benefit or use to the plaintiff.' The second count charges, substantially, the same fraudulent *Page 528 representation on the part of the authorized agent of the company.
"If these declarations of the agent of the insurance company are regarded as statements of the law of insurance, of the legal conditions on which the right of recovery in such cases depends, they are not actionable, though false. The cases cited for the defendants are sufficient, if authority or argument were needed, to support the statement that under such circumstances a man has not a right to rely, except at his own peril, upon the representations of the avowed agent of the adverse interest, as to what the law will or will not do, or will or will not permit to be done. Common prudence and common sense would seem to be, in all ordinary cases, sufficient safeguards against frauds of that character; and the declaration does not aver exceptional circumstances to give the right of action in the present instance."
In Ætna Ins. Co. v. Reed, 33 Ohio St. 283, the Supreme Court of Ohio says: "The personal relation of the parties was not one calculated to beget confidence or reliance, but the contrary. Rice was acting avowedly as the agent of a party whose interests were adverse to Reed, and common intelligence would have caused Reed to know he was not acting as his friend or advising his interests. Presumptively he would not be likely to stand in a relation different from other persons representing adverse interests. From the time the within statement was completed, Rice acted in a hostile rather than a friendly spirit, and with a strong assertion of opinion claimed the loss was a dead loss to Reed, and thus endeavored to induce Reed to think he could do no better than take his offer of one hundred dollars. It was not done with the thought on either side that he was a friendly adviser, but rather as one driving the best bargain he could for his employer. In this Reed could scarcely be deceived. All this time Reed was apparently as fully conversant with the facts of the case as Rice, and at liberty to ascertain the law of his case if he desired to do so. It was even suggested to him to do so with the probable result."
And in Mayhew v. Phoenix Ins. Co., 23 Mich. 105, the Supreme Court of Michigan says:
"Ireton was the agent of the adverse interest, and no one of ordinary experience would suppose him likely to forego the interests of his employers. Presumptively he would not be likely to stand in any different position from other persons dealing at arm's length. But he might assume a different position and thus become responsible.
"He does not seem to have done this. From first to last he displayed a somewhat hostile spirit, and complainant does not appear at any time to have been convinced that his positions were right. They were, except as to some questions of valuation, assertions of law and not assertions of fact, and while Ireton undoubtedly desired to impress complainant with the difficulty of doing better, it was very far from being done with any idea on either side that he was a friendly adviser. And complainant in his testimony shows that he was influenced in his settlement by a consideration of the inconveniences and delays and expense of litigation, and a very laudable dislike of it. But this is a very different thing from mistaken confidence.
"There is no satisfactory evidence that Ireton attempted to prevent complainant from seeking advice, and there is no good reason given why he did not obtain it. He was not among strangers, and he was aware of all the facts. It was his duty as a man of common prudence to seek advice from his own friends, if he had not confidence in himself. There was time and opportunity to take advice, and there was no pressing haste for a settlement at all, before the whole ground should be reviewed. None of his legal rights could be divested by taking time for getting up the proofs in the regular way. The whole transaction was one in which there was no need for hasty steps, and it was not common prudence to attempt such a speedy arrangement without knowing at least the extent of the damage. We do not shut our eyes to the common fact that this eagerness to settle is very often stimulated by the sort of peremptory position taken in this case, and that this domineering course is a valuable auxiliary to fraud. But the law cannot interfere to supply a lack of firmness in those who allow themselves to yield to such influences without some further element of misconduct. A man, who knows or has the means of knowing his rights, must, under ordinary circumstances, be expected to stand upon them. There is no legal fraud or *Page 529 duress in ordinary cases, in declining to comply with a demand without litigation."
In my humble opinion the above citations are conclusive on this question, and appellee should not recover.
This case, in my opinion, differs materially from Garsee v. Indemnity Ins. Co. (Tex.Civ.App.) 47 S.W.2d 654, 656, cited and relied upon by appellee. In the Garsee Case the evidence showed that the insurance Company's agent Berger was an experienced adjuster, while Garsee was an old, ignorant man suffering from a specific injury, to wit, hernia, for which the Compensation Law fixed a certain number of weeks' disability. The agent Berger represented to this old man that he would have to undergo a serious operation which might or might not be successful; that the insurance company would have to pay the expense of the operation, and, owing to the great number of similar bills, it might not be able to do so. Garsee was unable to read or write the English language, or any other language, and he told the agent Berger, at the time of the settlement, that he was placing confidence in him and was relying upon him to treat him right and to pay to him all he was entitled to. No such facts exist in this case. The appellee was not suffering with a specific injury, but, on the contrary, was making claim to the appellant for injury to the sacroiliac joint, the extent of which injury was within the knowledge of appellee and his father, Dr. McGee. On the date appellee signed the settlement agreement and receipt the agent Mann came to see him, talked with him, made the statements attributed to him, and appellee, without making any independent investigation at all as to what his rights were, signed the agreement and receipt. It seems to me that, before the appellee should be permitted to set aside this settlement agreement and receipt, made without compulsion, he should both allege and prove, not only the misrepresentations of the law, but that there was a fiduciary relation existing between him and the agent Mann which caused him to place undue confidence in the agent. The evidence in this case fails to establish such relationship.
Entertaining the views expressed above, it is my opinion that the judgment of the trial court should be reversed and the judgment here rendered for the appellant.