On Motion for Behearing.
In our consideration of the case on original hearing we assumed as true the testimony of L. M. Dunaway, to the effect that at the time of the settlement of his claim with the railway company through its claim agent, Bowman Jarrott, said Jarrott made to Dunaway the disparaging statements relative to some of Dunaway’s attorneys. We also assumed as a fact that those statements were false and intended to state in our original opinion that even the record upon the trial showed their falsity. And at the earnest insistence of counsel for appellees, we make the foregoing as a part of our original opinion.
Counsel for appellees have pointed out some inaccuracies in the recital of facts which are of no material importance, such as that Dr. W. F. Britton at the time he was called on to treat Dunaway in Putnam had *774not seen the latter since his boyhood, citing evidence to show that he had in fact seen him much more recently than that. We shall not attempt to correct such minor errors, as to do so would lengthen the opinion, which perhaps has been extended unnecessarily already.
Plaintiffs in the court below also insist that the judgment rendered in their favor against L. M. Dunaway, as well as against the railway company, for $2,400, should have been left undisturbed since Dunaway has presented no complaint or contention, either in the trial court, or in this court, that such judgment should be réversed as to him also, if reversed as to the railway company.
It is apparent from the entire record that the judgment in favor of plaintiffs was for $2,400 of the amount awarded as compensation to Dunaway for his injuries over and above the amount he had already received, such excess being $4,250, or the difference between $3,750, the amount he had received, and $8,000, awarded by the jury as the total amount of damages sustained by him by reason of his injuries; and that the judgment in favor of plaintiffs against Dunaway, as well as against the railway company, was merely to preclude Dunaway from making any claim to that portion of such additional damages.
[16] In other words, it is apparent from the record that the recovery awarded to plaintiffs was conditioned upon the liability of the railway company at all for damages in excess of the amount already paid to Dun-away. Under such circumstances, a reversal in favor of the railway company operated as a reversal of the entire judgment. Acklin v. Paschal, 48 Tex. 147; Washington v. Johnson, 34 S. W. 1041; Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548, and decisions therein cited; Thompson v. Kelley, 100 Tex. 536, 101 S. W. 1074.
[17] Furthermore, the fact that Dunaway has filed no reply to plaintiffs’ contention that the judgment against him for $2,400 should be undisturbed, or that they should now have a judgment for at least a part of the $3,750 received by Dunaway, in addition to other circumstances shown in the record, indicates that, in reality, probably they are not hostile to each other upon those issues.
Plaintiffs insist further that, even though the judgment be reversed in its entirety and here rendered in favor of the railway company, still, at all events, we should further render judgment in their favor against Dun-away for three-tenths of $3,750, the amount received by him in the compromise settlement with the railway company, under the undisputed contract they had with Dunaway. The contract of employment of plaintiffs by Dun-away was in writing and did assign to plaintiff three-tenths of the cause of action against the railway company, but following the language evidencing such assignment it stipulates:
“It is further agreed and understood that in case a compromise is made of the said claim before any suit is filed thereon, then my said attorneys are to receive an interest equivalent to 15 per cent, of the amount agreed on as compromise, instead of the three-tenths interest above mentioned.”
It is also undisputed that the compromise settlement was made prior to the filing of any suit on the claim for damages.
Under those circumstances, we will now here render judgment in favor of plaintiffs against defendant L. M. Dunaway for $562.-50, same being 15 per cent, of $3,750, with interest thereon at the rate of 6 per cent, per annum from November 11, 1913, the date of the settlement.
Accordingly, the judgment heretofore rendered by us is so reformed as to give plaintiffs a judgment against Dunaway to that extent, but in all other respects it is undisturbed.
Subject to the foregoing, the motions for rehearing filed by plaintiffs and by defendant D. M. Dunaway are overruled.