#### McCLOSKEY v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.

No. 1315.

Court of Civil Appeals of Texas. Waco.

Feb. 2, 1933.

Rehearing Denied March 9, 1933.

P. H. Long and Marcus W. Davis, both of San Antonio, for appellant.

F. C. Davis, of San Antonio, for appellee.

ALEXANDER, Justice.

F. P. MeCloskey brought this suit against the railway company, and alleged, in substance, that in the year 1922 one A. L. 1-Iill held a claim against the railway company for damages for personal injuries theretofore sustained by him; that Hiil assigned one-half of his claim to MeCloskey in consideration of the services to be rendered by Me-Closkey in collecting the claim; that suit was filed on the claim and notice of McClos-key’s interest therein given to the railway company; that thereafter the railway company fraudulently and without notice to Me-Closkey settled with Hill by paying him the sum of $2,100 in settlement of his claim; that the railway company fraudulently represented to MeCloskey that the claim had been settled for the sum of $400; and that by reason thereof MeCloskey was induced to accept the sum of $200' in settlement of his interest therein. MeCloskey sued the railway company for the sum of $1,050, being one-half of the amount paid Hill by the railway company, less the $200 theretofore received by Me-Closkey. The verdict of the jury was favorable to the defendant, and judgment was entered accordingly. The plaintiff appealed.

The only issue submitted to and answered by the jury was as follows: “Did the receiver, Sehaff, by either of his agents, settle with A. L. Hill for $2,100.00 and pay him that amount in settlement of his claim?” To which the jury answered, “No.”

The appellant contends that the evidence was insufficient to support the verdict of the jury. Only two witnesses testified with reference to the amount that was paid Hill in his settlement with the railway company. Dr. Calloway, a witness for appellant, testified that the settlement took place in his office and that the claim agent of the railway company paid Hill $2,100. He testified that the payment was made in two checks, one for $100, which was made payable to Dr. Calloway in payment of the medical services theretofore rendered by him, and that the other cheek was payable to Hill. He testified that he saw both checks, but that he did not scrutinize very carefully the one that was delivered to Hill. Mr. Rankin, who was the claim agent for the railway company at the time of the settlement, testified in behalf of' the railway company. He testified that on account of the long lapse of time between the time of the settlement and the trial he was unable to remember the exact details of the settlement and could not produce the canceled checks, but he further testified, “I know I didn’t pay him $2,100.00, to the best of my recollection, I swear to that.” It thus appears that the testimony of the claim agent was in conflict with the testimony of Dr. Calloway. The burden was on the appellant to prove, as alleged by him, that the railway company paid Hill $2,100 in settlement of the claim. The jury resolved the conflict in favor of the appellee, and we do not feel at liberty to disturb the verdict of the jury.

The judgment of the trial court is affirmed.