*1 BOMAN, JOHNSON, Respondent Appellant
(158 528) (File May 1, Opinion filed No. 10375. Fuller, Mitchell,
Morgan appellant. & for defendant Bleeker, Mitchell, & respondent. Shandorf ROBERTS, Judge. injuries resulting
This is an action for from a rear- plaintiff's end stopped collision between automobile at a street compliance signal intersection with a traffic and an auto- by mobile driven defendant. Defendant amended answer negligent failing admitted that he proper to maintain proximate lookout and that such failure cause alleged but as an affirmative defense recovery was barred from reason aof and settle- *2 judg- $3,650. agreement. jury for Motion awarded The ment notwithstanding trial was made for new the verdict or ment Judgment plaintiff and defendant was entered for and denied. appealed. has was which existed contends that a substantial
Plaintiff contemplation parties their was within and not unknown contracting that Defendant claims for the release. at the terms, plaintiff that is clear certain in its and injury, any known or and all for defendant from claims leased resulting unknown, plaintiff had from the accident and the consideration the contract of release nor restored rescinded by her from the August 20, Plaintiff did not accident occurred on 1962. injured appear seriously to her after to and was taken home be day by her doctor but later in the treated was following August hospital went and On she at released. according rest, hospital and her had and hot to a doctor "she packs, days, improved was dis- and after about three and she Plaintiff to work for the first time after missed". returned August days A few was con- accident on later representative by a of defendant's insurer who testified tacted hospital $75.00 that he obtained the release basis of damage expenses $125.00 and medical and cover tiff's stat- automobile. Plaintiff and delivered ing discharged she released and forever defendant from claims, any and all actions and which demands against may may ac- have the defendant or which accrue on any count of and all known or unknown damage property consequence of the accident. Plaintiff at time, September the same statement adjuster handwriting reading: years "I insurance am 19 age, Mitchell, Ave., 4th and live 317 E. S. D. am the I August 20, aof 1949 Ford 2-door sedan. On owner 1962 I was St., Mitchell, in an accident with this Main involved car on North going stop I South South Dakota. was on Main and to a came sign stopped stop behind another car had for the at 2nd suddenly pushed car hit & Main. A third mine from the rear and Riding my front Sharon in the seat was car one ahead. into the required lump on her head no received a but Van Gendren. She collision occurred I heard medical As soon as the attention. my my snap neck. had some dizziness neck August days, hospitalized I for 2 to 26th and was treated evening hospital I at the of the accident. was treated on R. have released from his care and Dr. G. Gere. I now been good except feel now for an occasional headache. I read have page true." one of this 'statement and it is testified she continued have headaches pain, unaware had sustained a serious *3 1963, Manhattan, Montana, injury. February, She returned parents where her resided. doctors She consulted on numerous occasions headaches and soreness and in her gave bearing physicians testimony neck. Two on the nature King and deposi- extent of her Dr. Edmund L. testified X-rays tion that he examined took and that his "complications whiplash injury, examination revealed of a a myositis, injury". chronic cervical the an result of Dr. R. G. Gere whiplash testified that sustained in the cervical spine opinion injury area of the in his was attributable to the collision in which was involved. grossly inadequate settlement for an amount for injuries actually
the sustained and there was evidence that tiff did now their know actual ap- nature extent. court plying provisions the of SDC 47.0241 concluded that injuries preclude recovery would suspected not for not known or agreed to exist upon. when the settlement was The section cited reads as follows: general
"A release does extend not to claims which the suspect creditor does not know or to exist in his favor executing release, at the time of the which if known materially him must have affected his settlement with the debtor."
"By provisions statute," the of this said this court in Petersen "injuries which the claim- general suspect when a to exist not know about
ant does they given, if are in the settlement included are lease they the settle- would have affected found to such that later be * * * statutory rule is they This been known. ment had * * * equity. nor Neither the statute rule in also the or unex- equity to aftereffects rule referred above pected consequences exist at the time known to binding and con- them release was made. As to subject legal clusive, applicable equitable defenses generally." contracts in the annotation in 71
Numerous decisions are cited gen- following support "The conclusions: A.L.R.2d 82 in inducing to material fact eral rule that a mutual mistake as ground may from its en- a contract be a relief execution of recognized frequently forcement has been of a claim for one who has executed a release situation where ground seeks to avoid its effect on the given mistake as to the and taken under a mutual injuries." nature and extent of the releasee's page The annotation referred to at 165 also states: "The fact compensation grossly received for a release was inade- quate actually frequently for the incurred has been re- indicating ferred to as at least a factor the release was not *4 given, understandingly supporting misrepre- claim of and so a sentation or mistake." emphasizes
Defendant
the statement
the effect
it includes
"unknown"
In Aronovitch v.
237,
570,
1306,
Levy, 238 Minn.
56 N.W.2d
34 A.L.R.2d
injuries,
personal
was also an action for
the court stated the rule
presented
which is
to the contention here
as follows:
that,
though
expressly
"Further
even
a release
covers unknown
injuries,
it is not a bar to an action for such unknown
if
it can be shown that such unknown
were not within
agreed
contemplation
parties
of the
when the settlement was
that,
upon,
agree
parties
intentionally
upon
but
if the
did in fact
injuries,
binding.
a settlement
for unknown
such release will be
parties
in-
Whether
intended the release
to cover unknown
Schiek's,
juries
usually
question
a
of fact." See
Simons v.
also
Inc.,
132,
It is further contended that action was maturely commenced there had been no rescission of Among the release nor restoration of the consideration received. contention, by support the cases cited defendant of this sought setting relief was a cancellation or aside of contract ground fraud, mistake, on the of other reason. Nilsson v. 783; Norfolk, 69 S.D. 9 N.W.2d v. Johnson 656; Beatty Depue, 82 N.W.2d supra, A.L.R.3d 531. As stated in Petersen v. (Civ.Code statutory provisions California has the same § 47.0241, supra. as contained in section In the case Backus v. Sessions, 51, general 17 Cal.2d 110 P.2d by when he was not aware of objection optic eye. an nerve of the left sought made that defendants had not rescission nor return of recognized the consideration received. The court the rule that purpose when the of an action is to cancel or set aside a contract ground fraud, reason, mistake or then it is other nec essary to rescind the contract and tender back the considera action, prior tion received points the commencement but out apply the rule does not where the "is at tempting made, showing to avoid a contract which he he did not make the apparently contract which he made". The distinguishable case is thus from the cases relied on jury The court on this basis instructed the an if made, award be the amount at the time the release was must be taken into consideration de termining recovery. the amount of We hold that properly jury. submitted to the
Judgment affirmed.
RENTTO, HOMEYER, JJ„ BIEGELMEIER and concur.
HANSON, Presiding Judge (dissenting).
270 compromise it favors the indicated
This court has heretofore v. disputed of court. claims outside and settlement of Johnson agreements 565, 656, Norfolk, and settlement 82 76 S.D. N.W.2d subject the same contracts to rescission "for and releases are contracts, including mistake of Nilsson other fact." reasons 312, 9 N.W.2d 783. v. August injuries particular on
In case suffered this neglig- 1962, 20, of an accident caused defendant's as a result snap and ex- felt her neck ence. At the time of accident she experienced Shortly perienced pain. in her thereafter she neck, headaches, dizzy spells, and faint- had was bothered ing day spells care. 5th for which she medical On the received injuries 1962, signed September, of with known these against action was lease of her claims According September para- until to not commenced injuries alleged graph complaint IV the identical are by plaintiff at the known time she the release. case, therefore, complainant
This is of a who has in juries suspect the time she she did not know about or exist at general According gen release. 47.0241 a SDC eral not extend "to claims which the creditor does release does executing suspect not know or to exist his at the of favor time ex release." Plaintiff's were all known to her and therefore, my opinion, isted at the time she filed the In release. squarely this case falls rule stated in v. within the Petersen Kem per, in which the court said "Neither equity the statute nor the rule referred to to after above unexpected consequences effects exist known to made. As to them the release binding conclusive, subject legal equitable defenses generally." appear contracts This would to be the rule in California under an identical statute. In the recent Newark, Jersey Commercial Insurance Co. of New Copeland, Cal.App.2d Cal.Rptr. the California general extinguished plaintiff's court held a ac cause of signed plaintiff tion time the where at the had been *6 experienced pain and also some in the a neck treated for region she did not lower which receive medical of her back signed After release was the condition in her treatment. said at became serious. court lower back signed she was aware of the in her back tiff it could been caused the acci- and must have known have therefore, dent, prevented recovery. the release further Furthermore, law, opinion, plaintiff my in a matter of as recovery promptly barred of her failure to rescind from discovering after the nature and extent of her She wait- during nearly years ed three commence her action married, employment, held kinds time she various was did traveling, considerable consulted with doctors various about complaints. her majority opinion cites the California case of Backus v.
Sessions, why authority 17 Cal.2d 110 P.2d the rules Quoting apply do not to this situation. therefrom it is rescission attempting said that "is not to avoid a contract which he made, showing he did not make the contract which apparently application present he made." This rule no has injured dazed, person incompetent, facts. It to an who is opiates signed. or under at the time the release is In the Backus signed the release hours after the suffering ankle, which time he was from fractured wrist and back, face, bruised arm eye, head left recognize and concussion. He could not his friends. He condition, opiates a dazed had been administered to him and the court found at the time the release was he was not competent and the release was void. Under these circumstances the court held the impairment release did not his settle claim for of vision and ultimate blindness which resulted from optic knowledge nerve of which he had no at the time the signed. suggestion In the case there is no record that when incompetent. she was Unfort- unately girl young she was an immature and the settlement ad- mittedly grossly However, long inadequate. do- after bringing action,
lay
is not entitled to
recover in accordance
rules,
Nilsson v.
with our former
and Petersen v.
reverse.
IN RE APPLICATION OF KISER
(158 596) (File Opinion May 1, No. filed