*1 al., et M. Sheehan Thomas, appellee, v. William Jack appellants. 52399. No. 842) (Reported 149 N.W.2d April 4, 1967. Bradshaw, Fowler, Fairgrave, by Figen- Michael Proctor & shaw, of Des Moines, appellant William M. Sheehan. & Huscher, Moines, appellee.
Gill of Des *2 personal injuries. J. This anis action for Snell, question sufficiency gen- here of the is the evidence to jury erate to of to as a mutual mistake fact incident the execution of a release. no On the issue before us there is controversy testimony. controversy material in the There is to the conclusions to be drawn therefrom. operating
Plaintiff while his automobile was “rear-ended.” recovery He seeks from defendant resulting Sheehan for his in- Hatfield, originally damage. and John W. named as de- fendant, is out following of the case directed verdict.
At damage appeared the time of the accident apparent damage plaintiff’s car, minimal. There was no but repair totaling bills $73 within the next few weeks were attrib- by plaintiff uted to the collision. body steering
Plaintiff’s thrown into the and his wheel morning knees the dashboard. next he was stiff and had an arm, pain sore. He abrasion on his a headache and a by neck. his He was examined his doctor. His condition was myofascial diagnosed strain of as a the neck and back. lower complain legs Plaintiff did about his not knees or the doctor did not them. Plaintiff testified that examine he was not aware any knees. bill, to his Plaintiff’s ray drugs X about
A little more than three weeks after the accident company representative. was contacted defendant’s insurance (29 days they A few accident) later after met dis- presented Plaintiff cussed claim. his bills and medical repair gone. car bills. Plaintiff said his soreness was There an plaintiff’s suffering. some discussion as to allowance for There injury nothing was no mention of knees and in the party any any knowledge record to indicate either injury plaintiff. serious felt his ease-should representative that he
Plaintiff told the representa- didn’t hurt to ask.” thinking “it $1500 be worth suffering kidding. He said “that tive told he was times the amount they give would two or four or five three or accepted $150 Plaintiff suffering.” the doctor bill re- provided and delivered a release. The release any all discharged defendant leased forever upon or liability, claims and demands actions, actions, causes injury suffering, known or any damage, loss, or by reason of or here- unaccrued, have been accrued, or unknown, acci- consequence inafter sustained be March 1963. on or about occurred dent which plaintiff developed accident after the Three months or four surgeon orthopedic Examination trouble his left knee. body in Hos- osteochondritis, free the left knee. indicated disability surgery period pitalization, and a followed. in- to connect sufficient evidence There was *3 jury to his car accident. for his brought
Plaintiff this action recover damage. allegations plaintiff’s peti- material
Defendant denied the alleged that by way further defense tion and by previous set- recovery barred reason agreement. tlement release, being signing but denied
Plaintiff admitted recovery that at the time of the barred from reason mutually mistaken about nature signing parties were injury. extent of the jury. Timely complete motions The ease was tried to a by and were to direct were made defendant overruled. a sum of submitted with verdict The issues were for plaintiff. car- (we speaking he is for his insurance Defendant assume understandably unhappy about the ineffectiveness being rier) company appealed. has the insurance the release obtained seriously challenged. Otherwise, result is not wording complete' its as possible. release is about as There is no claim any fraud, concealment, coercion or undue procurement. only haste its as a whether matter of law such given comparatively a release for a nominal sum will bar a subsequent action for unknown at the time.
I. Our comparatively recent
and pronouncements
review
incident
a
avoidance of
release because of mutual mistake
make exhaustive
many prior
discussion of
authorities unneces
sary. Our
pronouncements
most recent
appear
Reed v.
Harvey, 253
“Our eases have long may held a contract be set aside for a mutual mistake of material fact and a release is dif no any ferent from other following contract. In the cases we have held or recognized personal injuries release for be set aside where given the release was taken under mutual mistake injuries.” nature and extent of the releasor’s (Citations)
Defendant-appellant seriously challenge prin- does not ciple of law but argues that the factual situation here takes the case out of and Barnard rule.
In Reed dog. dog was bitten defendants’ tore bleeding. clothes and caused a doc- She was treated tor. After her wounds were four different treated was released. Prior to not the time the doctor told her she need return treatment, of defendants’ com- insurance pany contacted call him told when *4 Thereafter, released her. did as directed. ad- She juster to plaintiff eame home. where the He asked dog her, gave bit her the doctor to and if had released which she verify an to affirmative answer. He thereafter the doctor called the fact was at that time out that released and found adjuster $19. doctor’s bill was told he would The “for allow torn clothes and all loss $10 622
your you through- transporta- clothes and the trouble went tion.” agreed He also to ad- pay bill the doctor’s juster gave plaintiff their a a and told her wait few to prior sending it him dog to to make sure did not to have rabies. signed Plaintiff did and then wait the release adjuster. returned it to the surgery
About six months later she underwent complications ac- resulting dog from brought bite. She tion defendants she was signed and the release sought offered as absolute defense. Plaintiff to avoid effect of it mutual ground the release on the result of by plaintiff adjuster mistake concerning plaintiff’s and the physical condition at the time the release was executed. plain- evidence indicated that neither knew the serious nature undergo tiff’s to surgery. or that she would have jury issue submitted to the found in favor thereon.
In considering signed the release the author- extensively R.2d, Quoting ities were 71 reviewed. A. L. page we said: ‘appears jurisdictions
“There trend in to be definite most granting liberally towards relief that appear where is made to injured party impression released his claim a false under fully in- he informed nature and his extent of ” juries.’ pages 20 of said: On 19 and 253 Iowa we repudiate carefully “Unless we are deci- our considered Brady sion in Storage supra, Jordan v. Transfer & and go N.W. counter the definite trend of current authority, jury proper we must hold it was to submit question whether the release was result of mutual mistake. find release was under
“The could the mistaken plain- belief both seriously injured tiff’s knee when, truth, was not then had opera- costly torn meniscus which necessitated a serious ; tion doctor had told both them that no effect her; further medical and he had treatment was needed released *5 623 plaintiff nominal amount wholly for received was release compensation inadequate injury and indicates * * was not contemplation within parties of the In the ease-at bar the trial court’s definition of “mistake” appearing carefully instruction 12 in language is worded approved in the Jordan case. plaintiff
In injured passenger was de- while a cab. At fendant’s time appeared slight. her She was doctor, examined rayed, given X a sedative and head- pills ache sent home. She was assured her doctor rayX negative. was
Plaintiff and defendant’s ex- discussed pense hospital time, doctor bills, apparent her lost her injuries, and her torn overshoes and hose. These items totaled $71.30. Plaintiff accepted re- signed $100 in settlement and lease. developed
About four “whip- later it had a weeks that she injury lash” occipital to the head. nerves both sides her Surgery, hospitalization plaintiff sued followed signed defendant. The pleaded in bar release was plaintiff pleaded mis- mutual mistake. The of mutual issue take fact as the nature and extent of jury. was submitted A to the in a verdict substantial amount many was returned and citing including affirmed we cases Harvey. page Iowa, v. On 744 of 257 we said: finding
“The could make the same pointed 10, 19, out Reed 110 v. N.W.2d that the when both adjuster were seri- under .the mistaken belief was not ously injured, were the blow on the her headaches due to head, injury side truth then when had occipital required on =both sides of head which nerves disability. costly resulting in operation permanent serious and further Plaintiff’s had in -effect told both them no necessary treatment was her. released medical nominal amount received the release “The inadequate injury occipital wholly compensation for the contemplation
nerves and indicates it not within expenses parties merely out-of-pocket covered *6 —it suffered; plaintiff $28.70 inconvenience have adjuster acting good in accepted, would not have nor would the — they then trifling known she faith —have offered such sum permanent injury occipital had a to the nerves.” in the background problems involved The factual and the clearly comparable and Bar- at bar are to those in the Reed ease nard cases. the argues Defendant that in and Barnard
II. Reed case at bar there specific settlements items while in'the were for arm’s-length package settlement. negotiation was an at deal significant agree cannot is such a difference We that there distinguishable. In the case defendant as to make the cases for torn paid plus bill of $10 allowance transportation. clothes trouble specific In Barnard the items the ease the difference between figure was $28.70. the settlement There is In the case at bar is about the difference definitely nothing designate in what this was for the record to except something that the the indication allowed suffering. in argument rejected A similar made, considered that argued Barnard It there the difference must ease. was contingencies and been intended to cover future amounted have lump though sum settlement. held that even such to a We jury (loc. might be drawn issue was still for inference 747). cit. in
III. We not unaware of the dilemma are adjusters trying in claims find themselves to settle fully developments. unknown and future We are also argu vigorous dissent aware of ease. that appealing but we are not convinced ment that dissent is necessarily develop of a alleviation harsh rule is bad. The has permitting ment of the law correction of mistakes been justice. compro interest that doctrine courts favor appears has meaning still but when it that a mistake has mises been proper made a look at to take the factual situation as it existed when the words were written. testimony
In the ease at uncontradieted bar there was comparatively made settlement for small amount was complete ignorance injury. Mutual mis actual alleged jury. take was was submitted Repeating again supra, I, Reed v. Division unless repudiate are previous pronouncements we our and the defi trend authority nite current we must this case hold jury. submitted to the findWe no error. n is—Affirmed. case Rawlings J., JJ., C.
Garfield, Becker, Larson, . concur. *7 JJ., specially. Moore concur
Mason, Stuart, to dis (concurring specially) J. I am unable Mason, —As N.W. tinguish 10, from Reed 253 Iowa case v. Rapids City 2d and Barnard v. Cedar Cab 257 Iowa I majority, N.W.2d both cited concur on the basis of stare decisis. JJ., join special in this concurrence. Stuart,
Moore Larry Roofing G. Walker, appellee, Ivan v. and Iowa Sedrel
Company, appellants.
No. 52404. (Reported 874) in 149 N.W. 2d