237 A.D. 141 | N.Y. App. Div. | 1932
Plaintiff brought this action to recover for personal injuries alleged to have been sustained by him by reason of the negligent operation of an automobile by the defendant Kane. Kane had rented this automobile from the defendant Hertz Drivurself Stations, Inc., and said corporation is joined as a party defendant herein.
The business of the corporation was the renting of automobiles for use on the public highway. The defendants, answering, set up a general release to the defendant Hertz Drivurself Stations, Inc., hereinafter referred to as Hertz, executed by the plaintiff upon payment to him by said Hertz of the sum of fifty dollars. The defendant Hertz also set up by way of defense that it had complied with the requirements of section 59 of the Vehicle and Traffic Law by procuring the required insurance, and was, therefore, not liable under that section. Concededly there was no common-law liability on the part of the defendant Hertz, the only liability of said corporation being based upon the provisions of section 59 of the Vehicle and Traffic Law, which liability it had avoided by the procuring of the required insurance pursuant to said section. At the trial the general release which had been delivered by plaintiff to the defendant Hertz the day following the accident was offered and received in evidence, as to the subject-matter of the settlement pursuant to which such release was delivered and as to the knowledge of the parties concerning the matter embraced therein and the injuries sustained by plaintiff. At the close of the whole case the court dismissed the complaint as to the defendant Hertz upon the ground that having complied with the requirements of section 59 of the Vehicle and Traffic Law said defendant was not subject to the liability imposed by said section. From such dismissal there has been no appeal on the part of the plaintiff. The testimony of the plaintiff and his witnesses concerning the release was uncontradicted, and the court charged the jury that the release did not constitute a bar to plaintiff’s cause of action against the defendant Kane. The contention of plaintiff was not based upon the claim that the release in question did not bar plaintiff’s right to recovery against the defendant Kane upon the ground that it was delivered to the defendant Hertz, but the plaintiff did contend and now contends that the release did not bar plaintiff’s right to recovery against either defendant because it was delivered as the result of a mutual mistake of an existing fact. Plaintiff contends that had the release been delivered to Kane as well as to the corporate defendant, the result would have been the same.
Briefly, the facts are as follows: The defendant Hertz rented to the defendant Kane an automobile. At the time of the accident
The issues were submitted to the jury by the trial court after dismissal of the complaint as to the defendant Hertz, and the jury rendered a verdict in plaintiff’s favor for $2,250. There is no contention that this verdict is at all excessive.
The defendant, appellant, Kane relies entirely upon the general release which was given to the defendant Hertz. There can be no question that this release was given and accepted under a mutual mistake of fact, and that at that time neither the adjuster for the defendant corporation nor plaintiff had the slightest intimation of the seriousness of the injuries which plaintiff had sustained. The defendant, appellant, insists that he was a joint tort feasor with the Hertz corporation, and that the general release executed by the plaintiff to the Hertz corporation released its joint tort feasor, the defendant, appellant, Kane. Under the undisputed testimony in the case the defendant Hertz was never liable for the injuries sustained by plaintiff. It was not in any sense a joint tort feasor with the defendant Kane. At common law it was not liable and it was not liable by virtue of the provisions of section 59 of the
In Dominicis v. United States Casualty Co. (supra) the Appellate Division wrote as follows: “ The parties do not disagree materially as to the law applicable to this case, and that is, that in order to entitle the plaintiff to have the release rescinded in equity he must show that it was executed as the result of a mutual mistake as to an existing fact. The defendant insists that the mistake was not one of fact, but of belief or opinion. This question must be judged solely by the allegations of the complaint. These to my mind are ample to show that the release was signed and delivered as the result of a mutual mistake as to an existing fact. It is asserted in the complaint that at the time the release was executed and delivered conditions existed in plaintiff's arm which had not then been discovered which would eventually necessitate its amputation; that neither the plaintiff nor the defendant then knew that those conditions existed, as was the fact, and that the settlement was made and the release signed in good faith under the common but mistaken belief that plaintiff would not lose his arm and upon a mutual mistake as to the conditions actually then existing in the arm that would eventually result in its loss.
“ These are not in any sense allegations of opinions or beliefs, but of facts, and are sufficient, in our opinion, if proven, in connection with the other facts alleged, to establish a cause of action to rescind the release as founded upon a mutual mistake of fact.”
The judgment appealed from should be affirmed, with costs to plaintiff, respondent, against defendant, appellant.
Finch, P. J., O’Malley, Sherman and Townley, JJ., concur.
Judgment affirmed, with costs.