259 A.D. 496 | N.Y. App. Div. | 1940
On November 28,1936, the plaintiff was riding in an automobile operated by the defendant Lewis, who was a deputy sheriff driving a county car, and such automobile collided with one owned by the defendant William Place and operated by the defendant May Kingsbury Place.
The plaintiff seeks to recover damages for personal injuries sustained in such collision and alleges that she sustained fractures of the ribs and an injury to the right side of the chest wall, and that as a result thereof a dormant tubercular condition became active. The defendants as a defense set up a release executed by the plain
The court found that unknown to the plaintiff she sustained a fractured rib as a result of the accident; that at the túne the plaintiff signed the release she believed and thought her injuries were slight, superficial and temporary and would clear up; that Benson believed that the plaintiff had suffered bruises and had been shaken up and that her injuries were slight, superficial and of a temporary nature; that the first time that the plaintiff knew that she had a fractured rib and tuberculosis was after X-ray examination disclosed the same, in January of 1937.
It is evident that all the plaintiff intended to release were the injuries which she knew about at the time she signed the papers. In the conversation between the plaintiff and Benson the only
The release which plaintiff signed purported to release liability for not only the known injuries but also for those which were unknown and might thereafter develop. The plaintiff did not know that the release contained such provision and did not knowingly agree to be bound by it. Benson did not intend that the release should cover unknown injuries and a finding of mutual mistake is warranted upon the evidence. However, if Benson did intend that the release should cover unknown injuries, he knew that the plaintiff was unaware of such provision and that she signed the release in ignorance thereof. Under such circumstances it was his duty to tell her that the release contained a clause releasing the defendants from liability for any injuries which might thereafter develop or become known. (Kirchner v. N. H. S. M. Co., 135 N. Y. 182.)
The law is well settled that when a release is signed without any intention of the parties to release liability for injuries not known, such release will not be a bar to an action to recover for the unknown injuries. (Farrington v. Harlem Savings Bank, 280 N. Y. 1; Landau v. Hertz Drivurself Stations, Inc., 237 App. Div. 141; Dominicis v. U. S. Casualty Co., 132 id. 553; Harvey v. Georgia, 148 Misc. 633; Hennessy v. King, 225 App. Div. 152; affd., 252 N. Y. 570; Seidman v. New York Life Ins. Co., supra; Squier v. Houghton, 131 Misc. 129, 134, 135; affd., 225 App. Div. 797.)
The order and judgment should be reversed upon the law and the facts, with costs, and judgment should be granted in favor of the plaintiff, with costs, declaring that the release does not apply to injuries unknown to plaintiff at the time she signed the release and that such release is not a bar to the cause of action set up in the complaint. Certain findings of fact and conclusions of law should be reversed and new findings and conclusions made.
All concur. Present — Crosby, P. J., Cunningham, Dowling, Harris and McCurn, JJ.
Order and judgment reversed on the law and facts, with costs, and judgment directed in favor of the plaintiff, with costs, declaring that the release does not apply to injuries unknown to plaintiff at the time she signed the release and that such release is not a bar to the cause of action set up in the complaint. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.