*1 Plaintiff-Appellant, SMITH, A. Clifton Defendant-Appellee. LOOS, W.
William
No. 40. Mexico. Appeals Newof
Court of
July 21, 1967. Aug. 1967. Denied
Certiorari McCormick, Lusk, McCormick, Don G. Feezer, Carlsbad, appellant.
Paine & for Butt, Shaffer, Bass, Paul Butt Al- & buquerque, appellee.
OPINION OMAN, Judge. brought damages suit recover personal injuries allegedly sustained
him as collision intersection of motor vehicles which occurred on June predicated The claim was alleged negligence causing of defendant in the collision. denial,
'In general to a addition defendant pleaded defenses, certain affirmative of which had effected *2 premises. liability copy s claim for in the A of a full settlement of plaintiff had attached injuries, executed release was to answer and is defendant release from all as follows: Fifty DOLLARS, the sole consideration of One Hundred “For 00/100 receipt hereby acknowledged, hereby do of which is I release and for- claims, discharge: William Loos from all of ever W. demands whatsoever, had, which I now action ever which I can have or have on injuries, unknown, person, of or dam- account both known and to property, to age may arise, sustained me or hereafter in conse- quence of an accident or occurrence which on about 3rd occurred or June, day Carlsbad, McKay, at or near Elm and N. M. agreed payment “It is above sum is not to be construed as an admission any behalf of the above named liability accident, whatsoever on account of said and the sum ac- above cepted in full satisfaction any and release of and all claims whatsoever arising from the above mentioned accident. “Executed at day June, Carlsbad this 9th by: Witnessed Esther H. Smith Allen Clifton Smith
s/ [SEAL] s/ Shulenburg H. M. H. Esther Smith s/ [SEAL]” s/ separate A was had discharged before a him. was not from the He on the issue of the release. doctor’s care. The trial court sustained defendant’s mo- regular employ- returned to his tion for a directed verdict made at the close Monday, ment on 6. On he9 June June plaintiff’s case, ap- has Shulenburg, adjuster talked with Mr. pealed from the pursuant public liability insuror, for defendant’s to said verdict. two On second occasions. of these occasions, home, plaintiff’s which was at collision, plaintiff As a result of the sus- doctor, hospital he called the tained a blow to his head of sufficient force pharmacy verify to in order the amounts severity to raise a knot proceeding their bills before to settle. thereon, bump and to cause the wind- In his conversation with the doctor he shield, contact, it with which came in to discussing advised the doctor that he was be cracked and shattered star-like Shulenburg. settlement of his case with Mr. pattern. injuries He also his sustained Also, as a negotia- the settlement chest, neck. ribs‘and was examined He tions, he Shulenburg advised Mr. that his day his doctor on accident and may neck a little was sore and that he day. At the times he chiropractic need some treatments. He saw doctor he was sore over and they proceeded testified that from there. suffering from headaches and severe agreed pain execute release for doctor, neck. in addition $150.00, and did so. He testified that he conducting examination, treated read it, signing release before that he heat, prescribed neck with some understood the effect of the pain pills, advised that he just the release and that up bit, been shaken that he would was a release of all claims. easy while, sore and should take it for a any and that if further complications should At the time he executed the release on develop, call and the doctor would see 9 and until perform- he was June June employment. full duties of On the 23 his arm and June during leg worse, direct examination he testified were much again but he went to period leaving and he the soreness work. during worked while *3 gradually getting better. On cross- was morning and Thereupon then went home. by being questioned upon examination and he called the doctor first who had examined had bothered court he stated neck and treated him on 3 and 4. The doc- June him to the date of some extent from ill, tor was following morning, but on the release, until accident after he executed x-rays the doctor took of his head. June that Shulenburg and he had told Mr. On next morning, was h.e June having hurting, neck he was was having difficulty still further with his arm headaches, pretty “in much and that he was leg and speech. and with his The doctor on pain all the time.” told the court also He gave this date thorough him a examination telling he understood what he was Mr. Shu- and advised him “bleeding that he had lenburg, doing, that he knew what he was the brain.” The appoint- doctor made and he “meant understood the release plaintiff ment for neurosurgeon with a at exactly what it said.” Paso, Monday, El Texas for 27. June effecting At Paso, Plaintiff went to El was examined and execution Mr. by neurosurgeon, he and advised Shulenburg he, advised Mr. had a subdural He was imme- hematoma. Shulenburg, Albuquerque would return diately placed hospital and underwent and check for would be forth- surgery following for the re- coming in about a Plaintiff week. received hospital- He moval hematoma. the check in about a week. endorsed July until ized 7. deposited and check in bank account ap- 21. On the back the check June He lost six and weeks full time about two peared release: employment weeks time from his as accident, a total loss of “This draft by must be endorsed salary $1,500.00. of about His and medical payees exactly as drawn. $1,- approximately related bills also totaled “This draft constitutes settlement in full 500.00. of the claim described on face hereof absolutely He testified that would not he payee and the (s) endorsement below signed the had he known on have accepts it as such.” injury.” 9 that he “had a brain serious June However, is he not sure that he read this Shulenburg, Mr. called as a wit- who was release at the time he affixed his endorse- by plaintiff, ness testified that at the time ment below the same. he obtained the did not know that release he developed he a severe head- June hematoma, then had a subdural ache and the soreness in his neck was that had he known this would not paralysis worse. He also felt some of his tried to settle for $150.00. leg arm, difficulty a little speech. with his chiropractor points called asserts two securing pain about points relief from the in his for reversal. first of these re- neck. The chiropractor x-rayed given weight his neck lates to the to be evi- reported to him that he had sustained a deducible there- dence inferences “compression injury.” from, justified He was a heat before a court treatment directing his neck then went for defendant day. work Later in cites the afternoon he case. He close developed a “bad headache” and went home. New Mexico School thereof, (1965), consequences wherein subsequent P.2d 289 even in-, though was stated: nature and extent' of the juries consequences unknown it is' times that “We have stated at the time of settlement and for the court direct a verdict error execution of the release. is no There of a defendant at the close favor doubt cases cited presented, case unless has tiff’s instances, support least most lend
no facts which respective their views. Most of these cases Ross, N.M. his favor. Edwards v. cited both to in referred the. considering When lengthy appearing annotation A.L.R. *4 motion, at evi the court must look the 2d 82. light favorable to dence most (cid:127) every indulge inference tiff and must distinguish the shall not endeavor to We plaintiff, disregard in therein from the cases or reconcile them with Gib all unfavorable considerations. present and with what conceive we 429; Helms, 152, 381 P.2d son v. Mexico, we to be law in New nor shall the 194, Boney, 382 v. N.M. Hutchison 72 distinguish endeavor to between or recon- may differ If reasonable minds Many them them cile with each other. under as to the conclusion to be reached appear distinguishable to us to neither permissible inferences to the evidence or any generally accepted nor reconcilable on therefrom, question is one be drawn legal equitable principle. or it a for the is error to direct Many predi- supposedly 308, Ware, N.M. 366 verdict. Bell v. 69 mistake, upon theory cated of mutual P.2d 706.” theory which is which set- quoted here seeks to avoid effects his recognize the rule We in case; tlement and release. stated 5 Wil- in As recited are certain liston, Contracts, : fully (Rev’d. 1937) ed. 4347-48 recognized the trial court and was rule; opinion aware of this and are of “ * * * given is where a release applied properly that he rule injured in an accident and more seri- evidence at and sus the time considered injuries develop supposed ous than were tained the motion for a directed verdict. settlement, it to exist the time of is a of fact whether the principal .point second a the release assumed as basis of upon for reversal is that: numerous cases from several which he ports several (cid:127)TAKE VICTIM IS EXECUTED BY MUTUAL MIS- EXTENT OF THE GARDLESS OF THE LANGUAGE Plaintiff has cited CONTAINED IN TPIE RELEASE.” “A RELEASE .jurisdictions AS TO THE NATURE ttrges supports position. MAY GIVEN BE SET ASIDE IF which he numerous cases Defendant has cited INJURIES, BY position ACCIDENT jurisdictions urges sup- AND from RE- that, IT whether to make likely, terpretation gone [*] juries known cordance with the former [*] instrument, injured plaintiffs very [*] but injuries, from the » known a far in presumably the latter not or but of the intention or not. On finding whether the intent accident supposition some’courts out of tenderness for whatever the facts in might language possibility. a fair is more exist ac- in- in- (cid:127) release, Many like one here recognize involved the cases given under granting circumstances like those here basis for relief releasor present, is con- these situations is not one of mutual mistake, damages stitutes bar to suit for granted but relief is on some t arising injuries theory. as a result of other
343 time, most, (cid:127)any equivocation intent of the cases of our many, if not In release, subsequent light re when viewed aside written have set which developments, appear inclusive the to have been mis- gardless of how broad However, release, recognized can- takes. law does not and language of the operate retrospect intended that claims not to relieve if obligations, injuries, known unknown contractual whether deliber- assumed, ately intentionally execution of because released, subsequent development then the release unfor- being settled and' Sventek, v. tunate enforced. Larson unforeseen results. should be 388, 608, 385, 610 211 Minn. N.W.2d settlement, A contract Levy, Minn. (1941); Aronovitch of a or rescind because equity will reform 237, 246, 570, (1953), 34 56 N.W.2d express the mistake, fail must mutual 1306; Teasdale, Doyle v. A.L.R.2d Wis. into, actually fail agreement 328, 346, (1953); 57 N.W.2d 389-390 by the really express intended 344-4345, Utley, Denton v. 350 Mich. Bateman, 21 N.M. parties. Cleveland v. (1957); 542-543 Sloan v. 86 N.W.2d Merchant, ; (1916) P. Morris v. 149, 152,203 *5 Oil 177 Ohio St. Standard 411, (1967); Restate 606 423 P.2d 77 N.M. 237, (1964). N.E.2d 239-240 The Denton (1932). ment, Contracts, & 504 502 §§ and Sloan cases two those most are of expressed what the the instrument Here heavily upon by plaintiff. point We intended, particularly and majority that out in the Denton the plaintiff what he understood intended and 'of only the court concurred the result. agreement to mean. negotiations, In the case the Sloan which cases' above As preceded the of settlement and execution jurisdictions not reconcilable different are the release for the exact of the amount principle, be rec nor can their results property damage, did not embrace their facts. How onciled on basis of personal injuries. of ever, by the New we two decided opinion language We of .Court, Supreme which we believe involved, together of the release here with court, .compel the reached result testimony himself, of the Co., & 42 Federal Life Moruzzi v. Cas. to mean he read and understood release 320, 115 A.L.R. N.M. 75 P.2d Vandeventer, (1938); therein, 61 just can lead Mendenhall v what was stated (1956); see also N.M. to the conclusion that under- Albuquerque & Cerrillos Coal Tocci v. they stood were effect- and intended ; (1.941) Woods 45 N.M. P.2d 515 plain- for of the claims Hobbs, City of 408 P.2d accident, including arising tiff out of the (1965). personal injury, all claims on account of and both known unknown. The fact In the ef- Moruzzi case settlement was adjuster by correspondence both fected for $23.33 hematoma, developing ‘disability by injury unaware occasioned when some they the fact that not have struck the. settled boards from a fell-and scaffold same, they for a known the head. was disabled insured’s $150.00 can- period days, change meaning not be immedi- said to clear about fourteen language ately period of the after clear the termination of his understanding disability regu- intent he work at his returned to he employment. settled and executed the release. lar to work for continued approximately It takes little reflection of most Then month. acts, suddenly
of iis to our recall instances wherein taken and died the ill proximate into and consummated accord- as a direct and ‘purpose injury ance with our clear and without he had sustained. receipt gotiated, language was as follows. the face involved, appeared appeared: the check and which there
there check, ne- the insured endorsed and “Pay to the order Batista Mourzzi [sic] John
Insured
G. I. C. 313 & 33 Dollars, cts. $23 “Being in compromise full and final settlement of against all claims company policy any under its No. 4S4894 for illness, accidental effects, or its or their originating prior to date hereof. Casualty “Federal Company Life and Kennedy, A. Treasurer.”
“J. On the check, reverse side of the theory “It is the appellee signature above decedent’s because Moruzzi did not knew he was appeared: there going to injury, die as a result therefore the release which he executed “Received of the Federal Life and Cas- is void or voidable for mistake. Moruzzi ualty Company the amount named on face may may not have foreseen death. payment
hereof in full
Unforeseeability, however, is not a ‘mis-
settlement,
discharge,
any
release and
take’ in
*6
legal
sense.”
and all claims made or to be
as
made
liability
herein
and all
argument
In his
before us
company by
injury
reason of such
sought
distinguish
to
the Moruzzi case from
sickness or its or their
hereby
effects are
present
grounds
case on the
fully satisfied and discharged.”
negotiations
Moruzzi the
were limited and
by correspondence,
were conducted
whereas
validity
In sustaining the
of the release
present
in the
negotia
case the settlement
rejecting
thereon,
the attacks
tions were conducted in a face to face
mistake,
which was
the court stated in
encounter and discussion between the
as follows:
adjuster. However,
tiff and the
in Sloan
“ *
**
Though the
paid
amount
court,
v.
supra,
Standard Oil
the Ohio
Moruzzi appears
small,
ridiculously
con-
in reciting certain factors which have been
sidering
liability
the maximum
under the
judicially recognized
determining
as aids in
terms of the
policy, yet
insurance
it is
the intent
parties,
of the
stated that one of
province
not the
of this court to make the
factors,
these
be
favorably
to
considered
contract for the
guide
them in
party
seeking rescission or cancella
* * *
their business affairs.
tion, is
absence of bargaining and
“[t]he
“ * * * Moruzzi knew that he had
negotiating leading to
In
settlement.”
injured.
been
He did not know that the
light, the
of bargaining
negoti
absence
future effects and
injury
results of the
ating in the Moruzzi case should
been
death. The effects of
in-
a consideration in
arriving
a result
jury might
temporary
have been
total
opposite
reached,
and the fact of
disability
permanent
disability.
total
bargaining
negotiating
present
in the
* * *
parties
Both
to the contract
case should be a
consideration
settled for all
rights
time their
and obli-
of the result
by
reached
the trial court.
gations
respect
injury
of the
which had
occurred,
already
although
Vandeventer,
In
supra,
neither
Mendenhall v.
recovery
could
foresee with certainty
from comminuted
a
future
might
effects
fracture of the
be.
ulna was not as
HENSLEY,
anticipated
(dissenting).
at the time
Jr.
a
execution
her of a release. From
At the close of the
case the
judgment,
pursuant
directed
in the presence
court
of the
separate trial
for defendant on a
announced that would entertain motion
the issue of the
for a directed verdict. The defendant’s
appealed.
Supreme
quoted
she
The
Court
then
motion for
directed verdict was
length
approval
Moruzzi
with
from
v.
objection
made
sustained over the
Co., supra,
Federal Life & Cas.
also
majority opinion
plaintiff. The
sum-
part:
stated in
marily approves the directed verdict and
accurately quotes
v. New
injury
personal
far
releases from
“So
as
326, 404 P.2d
School of
held
concerned,
generally
it is
are
claims
Sventek,
majority
289. The
cite Larson v.
as
regarded
parties
‘where the
Teasdale,
Levy, Doyle
Aronovitch v.
v.
to future
reference
having
with
contracted
Utley,
Denton v.
and Sloan
Standard
other
there is no fraud or
possibilities, and
exception
Company.
these
Oil
Without
inequitable
by the release
conduct
[re-
state
a release is attacked
that when
be avoided on
leasee],’
‘cannot
a release
for fraud or mutual
of fact that
mistake
merely because
ground mistake
question
fact.
intent of the
is a
parties
injuries prove
than
more serious
Contracts,
Williston,
ed.
Rev.
See also
executing the
time of
releasor at
722;
1551;
page
Release
§
§
C.J.S.
Pom.Eq.
release believed them to be.’
376,