WILLIAMS, Associate Justice.
A judgment of the District Court in favor of the'defendant in error, in an action brought against. it by plaintiff in error for damages for personal injuries, was affirmed
by the Court of Civil Appeals, and the case is before us on writ of error from the judgment of affirmance.
Quebe, while in the employment of the railroad company and attempting to stop with a heavy piece of timber an engine tank moving along an inclined track, stumbled over an iron peg driven into a pathway along which he was running and was struck upon the breast and throat by the end of the timber and fell, his head striking the ground with force. He stopped work for a few days, but believing that he had received no injuries except those to his throat and breast, and that they were trifling, and being so told by the surgeon of the company, he reported for re-employment. The company had a rule forbidding the re-employment of any servant who had an unsettled claim for damages against it, and its agents informed Quebe that he could not be employed unless he executed a release. Thereupon the following instrument was executed:
• “Contract of Settlement.—Know all men by these presents: That whereas, on the 3d day of May, 1901, I, the undersigned, was in the employ of the Gulf, Colorado & Santa Fe Railway Company, as carpenter, on * * * and while so employed received injuries as follows: Throat and breast injured by falling on a peg. And whereas, said company will not employ or retain in its employment anyone who has an unadjusted claim for damages against it, and will not promise employment to or consider anyone as an applicant for employment who has an unadjusted claim against it:
“How, therefore, for the purpose of fully ending and determining any claim for damages that I may have against said company, and for and in consideration of the sum of one dollar to me in hand paid by the said company, the receipt whereof is hereby acknowledged, it being agreed that the execution hereof will be conclusive evidence of the receipt of the same by me, and that I will never claim that the same was not paid to me by said company, and in consideration of the promise of said company to employ me for one day as carpenter at the usual rate of pay, the execution hereof being conclusive evidence that said company has made me such promise, and for such further time and in such capacity as may be satisfactory to the said company, and not longer or otherwise, I do hereby remise, release and forever discharge said company of and from any and all manner of actions, suits, debts, and sums of money, dues, claims and demands whatsoever, in law or equity, which I have ever had or now have .against said company by reason of any matter, cause or thing whatever, whether the same arose upon contract or upon tort. It being expressly agreed and understood that said company is not bound or obligated by these presents or otherwise (except as to said one day) to retain me in any particular kind of employment nor for any definite time.
“In testimony .whereof, I have hereunto set my hand this 8th day of May, 1901. W. S. Quebe.”
Qucbe resumed work on the same day and remained in the service for about four months, when he became blind and quit. The consideration of one dollar was also paid to him by the company. In his action he asserts no claim for the injury to his throat and breast but claims that his loss of sight was caused by the blow received upon the head in falling. As to this his contentions are, (1) that the release does not cover that injury; but if it does,
(2)
that it was executed without consideration; (3) that it was executed under a mistake of fact, and (4) that it was procured by fraud. Besides the questions arising on this release, there were the usual issues as to negligence, contributory negligence, assumption of risk and proximate cause. Another prominent question was whether or not plaintiff’s loss -of sight was caused by his fall, and upon this the evidence was conflicting and uncertain. The judge who tried the case submitted of all these issues, and, with reference to the release, instructed the jury that it precluded the plaintiff from recovering any damages for the injury to his throat and breast, and further as follows: “The question as to whether the plaintiff and the defendant company intended by the execution of said release to include therein injury to plaintiff’s eyes, is a question of fact for your determination under the terms and language of said release, construed in the light of all the evidence and circumstances in the case. If you believe that by the terms of said instrument, construed in the light of all the evidence in this case, it was contemplated or intended by the plaintiff and the defendant company at the time of the execution of said release, to release the defendant company from all injuries and damages that might result to plaintiff from said accident and injury, including injuries to his eyesight, then in such case you will find for the defendant company without further inquiries. On the other hand if you believe from the evidence and the terms of said release, construed in the light of all the evidence in the case, that it was not contemplated by the plaintiff and the defendant nor intended by them at the time of the execution of said instrument to release the defendant company from anything except damages on account of the injury which plaintiff then claimed -to have received to his throat and breast, and that it was not intended thereby to release the defendant company from damages on account of other injuries thereby received, on account of injuries to his eyes, such as is claimed in this case, then and in such case said instrument would not conclude the plaintiff and prevent him from a recovery on account of injuries to his sight, provided plaintiff is entitled to recover same under the law as contained in this charge and the evidence admitted before you.” A general verdict was returned for defendant.
The leading .contention of counsel for plaintiff in error is that the court should not have thus submitted to the jury the question as to the legal effect of the instrument, but should have instructed, as matter of law, that it did not embrace the injuries for which damages are now claimed. This contention raises the question as to the construction of the instrument, simply, and leaves out of view all questions as to want
of consideration, mistake and fraud. We agree with the Court of Civil Appeals that, construed by its language alone, the release is sufficiently broad to embrace all damages arising from the accident specified in it, the “falling on a peg.-” Not only the general language of the concluding clause, but the recital of the object and purpose of the parties plainly lead to this conclusion. The reliance of the counsel, in this contention, is upon the principle of construction laid down in a' vast number of authorities, that where there is, in a release, a particular recital of the subject matter or consideration about which the parties are dealing, general language following, which purports to release all claims, is construed to have reference to the particular matter recited and is confined to that. This is done in order to prevent surprises by which parties, when releasing one cause of action, may be made to appear to have released another.
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WILLIAMS, Associate Justice.
A judgment of the District Court in favor of the'defendant in error, in an action brought against. it by plaintiff in error for damages for personal injuries, was affirmed
by the Court of Civil Appeals, and the case is before us on writ of error from the judgment of affirmance.
Quebe, while in the employment of the railroad company and attempting to stop with a heavy piece of timber an engine tank moving along an inclined track, stumbled over an iron peg driven into a pathway along which he was running and was struck upon the breast and throat by the end of the timber and fell, his head striking the ground with force. He stopped work for a few days, but believing that he had received no injuries except those to his throat and breast, and that they were trifling, and being so told by the surgeon of the company, he reported for re-employment. The company had a rule forbidding the re-employment of any servant who had an unsettled claim for damages against it, and its agents informed Quebe that he could not be employed unless he executed a release. Thereupon the following instrument was executed:
• “Contract of Settlement.—Know all men by these presents: That whereas, on the 3d day of May, 1901, I, the undersigned, was in the employ of the Gulf, Colorado & Santa Fe Railway Company, as carpenter, on * * * and while so employed received injuries as follows: Throat and breast injured by falling on a peg. And whereas, said company will not employ or retain in its employment anyone who has an unadjusted claim for damages against it, and will not promise employment to or consider anyone as an applicant for employment who has an unadjusted claim against it:
“How, therefore, for the purpose of fully ending and determining any claim for damages that I may have against said company, and for and in consideration of the sum of one dollar to me in hand paid by the said company, the receipt whereof is hereby acknowledged, it being agreed that the execution hereof will be conclusive evidence of the receipt of the same by me, and that I will never claim that the same was not paid to me by said company, and in consideration of the promise of said company to employ me for one day as carpenter at the usual rate of pay, the execution hereof being conclusive evidence that said company has made me such promise, and for such further time and in such capacity as may be satisfactory to the said company, and not longer or otherwise, I do hereby remise, release and forever discharge said company of and from any and all manner of actions, suits, debts, and sums of money, dues, claims and demands whatsoever, in law or equity, which I have ever had or now have .against said company by reason of any matter, cause or thing whatever, whether the same arose upon contract or upon tort. It being expressly agreed and understood that said company is not bound or obligated by these presents or otherwise (except as to said one day) to retain me in any particular kind of employment nor for any definite time.
“In testimony .whereof, I have hereunto set my hand this 8th day of May, 1901. W. S. Quebe.”
Qucbe resumed work on the same day and remained in the service for about four months, when he became blind and quit. The consideration of one dollar was also paid to him by the company. In his action he asserts no claim for the injury to his throat and breast but claims that his loss of sight was caused by the blow received upon the head in falling. As to this his contentions are, (1) that the release does not cover that injury; but if it does,
(2)
that it was executed without consideration; (3) that it was executed under a mistake of fact, and (4) that it was procured by fraud. Besides the questions arising on this release, there were the usual issues as to negligence, contributory negligence, assumption of risk and proximate cause. Another prominent question was whether or not plaintiff’s loss -of sight was caused by his fall, and upon this the evidence was conflicting and uncertain. The judge who tried the case submitted of all these issues, and, with reference to the release, instructed the jury that it precluded the plaintiff from recovering any damages for the injury to his throat and breast, and further as follows: “The question as to whether the plaintiff and the defendant company intended by the execution of said release to include therein injury to plaintiff’s eyes, is a question of fact for your determination under the terms and language of said release, construed in the light of all the evidence and circumstances in the case. If you believe that by the terms of said instrument, construed in the light of all the evidence in this case, it was contemplated or intended by the plaintiff and the defendant company at the time of the execution of said release, to release the defendant company from all injuries and damages that might result to plaintiff from said accident and injury, including injuries to his eyesight, then in such case you will find for the defendant company without further inquiries. On the other hand if you believe from the evidence and the terms of said release, construed in the light of all the evidence in the case, that it was not contemplated by the plaintiff and the defendant nor intended by them at the time of the execution of said instrument to release the defendant company from anything except damages on account of the injury which plaintiff then claimed -to have received to his throat and breast, and that it was not intended thereby to release the defendant company from damages on account of other injuries thereby received, on account of injuries to his eyes, such as is claimed in this case, then and in such case said instrument would not conclude the plaintiff and prevent him from a recovery on account of injuries to his sight, provided plaintiff is entitled to recover same under the law as contained in this charge and the evidence admitted before you.” A general verdict was returned for defendant.
The leading .contention of counsel for plaintiff in error is that the court should not have thus submitted to the jury the question as to the legal effect of the instrument, but should have instructed, as matter of law, that it did not embrace the injuries for which damages are now claimed. This contention raises the question as to the construction of the instrument, simply, and leaves out of view all questions as to want
of consideration, mistake and fraud. We agree with the Court of Civil Appeals that, construed by its language alone, the release is sufficiently broad to embrace all damages arising from the accident specified in it, the “falling on a peg.-” Not only the general language of the concluding clause, but the recital of the object and purpose of the parties plainly lead to this conclusion. The reliance of the counsel, in this contention, is upon the principle of construction laid down in a' vast number of authorities, that where there is, in a release, a particular recital of the subject matter or consideration about which the parties are dealing, general language following, which purports to release all claims, is construed to have reference to the particular matter recited and is confined to that. This is done in order to prevent surprises by which parties, when releasing one cause of action, may be made to appear to have released another. Most of the many well-considered cases in which releases were thus construed, without reference to questions of fraud and mistake, involved transactions in which the instruments showed that the releasor, while treating of one cause of action, used general language which the other party sought to apply to another-and distinct cause of action. In this case there was but one cause of action, to discharge which was the very purpose recited in the paper, and language appropriate to such purpose was used. The language of the release is not restricted to the damage to throat and breast. The cause of the injury, that which gave rise to the cause of action for all damages resulting, the fall, is also specified, and all cause of action is then released. Properly applied, the rule of construction restricts the general language to that cause of action and would'prevent its application to any other. It. is doubtless true that a person having such a cause of action may make a settlement for the damages of which he is at the time conscious, reserving his right of action for any that may subsequently accrue (Bliss v. New York C. Ry. Co., 160 Mass., 447; Och v. Missouri K. & T. Ry. Co., 130 Mo., 27); but such a settlement would be much out of the ordinary course of dealing and is not expressed by language such as that used by these parties. No ordinary release relating to only one cause of action should be construed as splitting it up, unless the purpose is expressed in its language. In the present case the language is inconsistent with such a purpose. Some countenance is given to the proposed construction of the instrument in question by the language of some opinions. Union Pac. Ry. Co. v. Artist, 60 Fed. Rep., 365. We are not inclined to agree with the application of the rule of construction given in that case, but whether correct or not, it can not control here. The particular recitals in the instrument there construed of the injuries received were much more specific than those of the one before us. Every instrument must be construed by its own language and the intention expressed in it must-control; and the intention here expressed, to release a cause of action rather than to acknowledge receipt of payment for a part of the damage, can not be mistaken. We repeat that what we have thus far considered is the application of the rule of construction by which the legal mean
ing of the release is to be ascertained and not the principles governing in eases where such instruments are sought to be set aside or restricted in their operation on grounds of fraud or mistake. In most of.the accident eases cited by plaintiff in error in which relief was given against the general language of releases, they were attacked on the ground of mistake or fraud, and the expressions in the opinions must be understood as applying when such is the question, and not when the interpretation or construction of the language alone is under consideration: Lumley v. Railway Co., 76 Fed. Rep., 72; Blair v. Railway Co., 1 S. W. Rep., 352.
The two questions are not always kept distinct in the discussion of such cases as they must be kept here. They must be kept distinct here, because the question of mistake vel non was submitted to the jury in a manner most liberal to plaintiff, and no fraud appears in the case. Any theory of mistake must involve the fact that plaintiff, in the release, did not intend to embrace any such damages as those he now claims, and whether he did or not was a question left with the jury. He asserts that the evidence conclusively shows that he did not so intend, because he had no knowledge that such injuries existed and that such damage would ensue. The answer is, that for him to intend to release all cau.se of action, for prospective as well as past and present damage, it was not necessary for him to know what the future would bring to pass. It is enough if he made a binding contract by which he took the “chances of future development.” Houston
&
T. C. Ry. Co. v. McCarty, 94 Texas, 298. As to this the release and its recitals contained the evidence of his intention. It is not necessary for us to decide whether or not the court properly put this question to the jury, for, under the view taken of the release, its action was favorable to plaintiff and he can not complain. Hpon the subject of fraud there was nothing to submit, had there been a request for a submission of that question. The statement made by the surgeon as to the character of plaintiff’s injuries was only his medical opinion, which accorded with all that was Imown or believed, and was made with no purpose, so far as appears, to procure a release' or other advantage. Ho circumstance of undue influence or overreaching is shown. So far as appears, plaintiff acted freely and voluntarily in making the settlement. The consideration was a valuable and legal one, though small. Considering the fact that the matter settled was' regarded by both parties as involving no large amount, it can not be said that the smallness of the consideration, by itself, furnishes ground for disregarding the release. From the written contract and the verdict of the jury it appears that plaintiff chose to accept what was offered' and release his cause of action, and no ground for relieving him is made to appear.
Affirmed.