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relation of doctor and patient existed between one of the witnesses and Meyer. This is attempted to be made out by that part of section 709 of the Revised Statutes, which provides: "The writ [to the final judgment or decree of a state court] shall have the same effect as if the judgment or decree complained of had been rendered or passed on in a court of the United States.”

However this may be, in cases like that at bar, we accept the construction the state courts give to state statutes. It is manifest that the question submitted involves the construction of the state statute. Plaintiff in error is not helped by the decision in Foley v. Royal Arcanum, 151 N. Y. 196. It was there decided that a waiver in a policy of insurance was valid under sections 834 and 836, as they then stood, and their subsequent amendment did not affect the waiver. But the certificate of insurance in the case at bar was made after the amendment to section 836. In Holden v. Metropolitan Life Ins. Co., 165 N. Y. 13, it was held that the statute, by virtue of the amendment, "in positive and express terms, requires the waiver to be made upon or at the time of the trial or examination," and "no one except the personal representatives of the deceased patient can waive the provisions of section 834, and it can be waived by them only upon the trial or examination where the evidence is offered or received." Foley v. Royal Arcanum was referred to and limited to the construction of the statute as it stood before amendment. The opinion of the Court of Appeals in the case at bar follows the Holden case and distinguishes prior cases.

Judgment affirmed.

198 U. S.

Argument for Plaintiff in Error.

TEXAS AND PACIFIC RAILWAY COMPANY v. DA

SHIELL.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT.

No. 212. Argued April 11, 1905.-Decided May 29, 1905.

An employé of a railroad company executed a release which, after reciting that he had been injured in an accident, and that it was desirable to maintain pleasant relations, and avoid all controversy in the matter, and specifying certain slight bodily injuries including a scalp wound, released the company for a consideration of thirty dollars from all "claims and demands of every kind whatsoever for or on account of the injuries sustained in the manner and on the occasion aforesaid;" subsequently, after having remained in the company's employ about three months, he sued and obtained a verdict for permanent bodily and mental injuries, resulting from injuries not enumerated in the release, including a fracture of the skull; there was testimony going to show that the fracture was not known when the release was executed and that the permanent disability resulted from non-enumerated injuries. The trial court charged that the release related only to damages sustained by the enumerated injuries and not to those sustained from the non-enumerated injuries. Held, not error and that:

General words in a release are to be limited and restrained to the particular words in the recital; and the release in this case, not being for all injuries but only for the particular ones specified, was not a bar to a recovery for damages resulting from the non-enumerated injuries and that the application of this rule is not affected by the words "avoid all controversy in regard to the matter" as those words did not relate to the accident but to the specified injuries.

THE facts are stated in the opinion.

Mr. David D. Duncan, with whom Mr. John F. Dillon and Mr. Winslow S. Pierce were on the brief, for plaintiff in error:

The release on its face was intended by the parties to apply not only to injuries then known, but to such as might develop thereafter.

The construction put upon the release by the trial judge is an error which works serious injustice, and defeats the inten

Argument for Defendant in Error.

198 U. S.

tion of the parties. Union Pacific v. Artist, 60 Fed. Rep. 365, distinguished; Greene v. Chi. & N. W. R. R. Co., 92 Fed. Rep. 873, 880.

As a general principle of construction, applicable to all releases, while mistakes of fact may be sufficient to avoid a release, ignorance of future effects of an injury does not render the instrument inoperative or void. Currier v. Bilger, 149 Pa. St. 109; Kane v. Traction Co., 186 Pa. St. 145; Eccles v. Union Pacific Ry. Co. 7 Utah, 335; Nelson v. Minneapolis St. Ry., 61 Minnesota, 167; Shooks v. Ill. Cent. R. R. Co., 115 Fed. Rep. 57; Chi. & N. W. Ry. Co. v. Wilcox, 116 Fed. Rep. 913.

Since the judgment in this case was affirmed by the Circuit Court of Appeals, the law in Texas, where the cause of action arose, has been settled in favor of the railroad company by the Supreme Court of that State. Quebe v. Gulf, C. & S. F. R. R. Co., 10 Tex. C. Rep. 296; S. C., 81 S. W. Rep. 20.

Mr. Ben. M. Terrell for defendant in error, as to the effect. of the release:

Where there are general words alone in a release they shall be taken most strongly against a releasor; but where there is a particular recital, and then general words follow, the general words shall be qualified by the particular recital.

If the terms and expressions of an instrument are such as to render it uncertain to the court as to what was the true intention of the parties in the use of such terms and expressions, then the court should hear testimony touching the matters to which said instrument relates and give the instrument such a construction as will obviate any latent ambiguity therein and express the real intention of the parties at the time of its execution, and to ascertain what was contemplated by them when such terms and expressions were so used. Un. Pac. Ry. v. Artist, 60 Fed. Rep. 365; Railroad Co. v. McCarty, 94 Texas, 302; Ramsden v. Hylton, 2 Vesey, 304; Lumley v. Railway, 76 Fed. Rep. 66; 2 Parsons on Con., ed. 1855, 28;

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Jackson v. Stackhouse, 1 Cowan, 122; Hill v. Miller, 76 N. Y. 33; Clark v. Woodruff, 83 N. Y. 520; Chitty on Con., 6th Am. ed., 778a; Bacon's Abr. Release, K; Payler v. Homevsham, 4 M. & S. 423; Shook v. Illinois Central Ry. Co., 115 Fed. Rep. 57.

General words in a release are to be limited and restrained to the particular words contained in the recital. Stonehewer v. Farrer, 14 L. J., Q. B. 122; Lyman v. Clark, 9 Massachusetts, 234.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This action was originally brought in the District Court of Tarrant County, in the State of Texas, and removed by the railway company to the United States Circuit Court for the Northern District of Texas on the ground that the railway company is a corporation under the law of the United States. The trial resulted in a verdict for the defendant in error for the sum of $7,500, upon which judgment was entered. It was affirmed by the Circuit Court of Appeals.

The action was for personal injuries sustained by defendant in error through the negligence of the railway company. The defendant in error was a conductor on one of the company's freight trains, with which another train collided, "whereby," it is alleged, "plaintiff was seriously, painfully and permanently injured in many parts of his body and especially was he so injured in and about the head, eyes, back, sides, arms and shoulders, and in the organs and functions of his brain and in his entire mental and nervous system, and that as a result of said injuries plaintiff has, since the reception thereof, now is, and in the future will permanently be, helpless, injured and unsound of mind and body, and wholly incapable of transacting any kind of business or of doing any kind of mental or manual work, and that he now is and for the remainder of his life will be cared for and protected, if at all, by his friends and relatives."

Opinion of the Court.

And it is also alleged:

198 U. S.

"That as a result of said negligence and collision plaintiff further says he was badly burned about the legs, sides, back, arms, hands and head, and that his left eye has become seriously affected by reason of said injury thereto, and by reason of said injury to his head and nervous system affecting said eye, in so much that the value, use and sight of said eye is now greatly impaired and almost entirely lost, and that the sight of his right eye is also now considerably weakened and impaired by reason of its sympathy for his said left eye. That as a result of said negligence and injury plaintiff now suffers, has suffered and for all his life will continue to suffer great physical pain and much mental anguish and pain."

Among other defenses plaintiff in error pleaded a release executed by defendant in error on the second of February, 1901, which is as follows:

"Whereas on and prior to the 24th day of December, 1900, I, G. H. Dashiell, was employed by the Texas and Pacific Railway Co. as brakeman and extra freight conductor at or near Eastland, Texas, on the said 24th day of December, 1900, about 3.15 o'clock A. M. I sustained certain personal injuries in the manner and of the character described, to the best of my knowledge and ability, to wit:

"Extra east eng. 189 struck caboose of extra east eng. 255, 2 miles east of Eastland, bruising my body, right leg, right arm, and giving me a scalp wound.

"And, whereas, it is by said railway company and myself mutually desirable to maintain amicable and pleasant relations and avoid all controversy in respect to said matter:

"Now, therefore, to that end, and in consideration of thirty and no /100 dollars, to me now here paid in cash by said Texas and Pacific Railway Company, I hereby release and acquit, and by these presents bind myself to indemnify and forever hold harmless said Texas and Pacific Railway Company from and against all claims, demands, damages and liabilities, of any and every kind or character whatsoever, for or on account

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