Wyatt v. Imes

36 N.C. App. 380 | N.C. Ct. App. | 1978

ARNOLD, Judge.

Plaintiff’s contention in this appeal is that it was error to grant summary judgment for defendant. Her position may evoke sympathy from the Court, but it is without basis in logic or law. Plaintiff admitted signing the release with the insurance company, but she contends that her signing was induced by a mistake of fact as to the extent of her injuries. While our courts have held that a release from liability for personal injury may be set aside for mutual mistake of fact, Cheek v. R.R., 214 N.C. 152, 198 S.E. 626 (1938), there is nothing in the instant case to suggest that the mistake was mutual. The North Carolina Supreme Court has broadly outlined factors to be considered in determining whether a release was executed under a mutual mistake of fact:

“. . . [A]ll of the circumstances relating to the signing must be taken into consideration, including the sum paid for the release. A factor to be considered in cases of this kind is whether the question of liability was in dispute at the time of the settlement. The source or author of the mistake is of no consequence if the parties in good faith relied on it, or were misled by it, and the releasor was thereby induced to release a liability, which he would not otherwise have done.”

Caudill v. Manufacturing Co., 258 N.C. 99, 103, 128 S.E. 2d 128, 131 (1962), quoting 76 C.J.S., Release, s. 25a, pp. 645-47.

In the case sub judice, the plaintiff offered no evidence that indicates any mistake or misrepresentation by defendant, through J. M: Wise. Both the deposition of plaintiff and the affidavit of Wise indicate that plaintiff and Wise discussed the estimates of damage to plaintiff’s automobile and the medical bills plaintiff had received. The release plaintiff signed stated that plaintiff did “release, acquit and discharge the said Dezer D. Imes from all claims and demands, actions and causes of action, damages, cost, loss of service, expenses and compensation on account of, or in any way growing out of bodily injuries and property damage resulting or to result from . . . [the] accident ...” [Emphasis added.]

Furthermore, according to the undisputed affidavit of J. M. Wise, plaintiff on several occasions indicated her desire to settle for $650. While there is evidence tending to support the fact that plaintiff’s damages ultimately came to $3000, we cannot say that the sum of $650 was an unreasonable amount to pay for the release at the time the release was signed. Finally, plaintiff at no time has alleged that she was unable to read, that she was misled by defendant, or that the release failed to express the intention of the parties at the time of the settlement. See Beeson v. Moore, 31 N.C. App. 507, 229 S.E. 2d 703 (1976), cert. denied, 291 N.C. 710, 232 S.E. 2d 203 (1977), a case in which summary judgment for defendant was affirmed even though plaintiff argued that he mistakenly believed that the release he signed was solely for automobile damage and not personal injury.

We find that the trial court properly granted defendant’s motion for summary judgment.

Affirmed.

Judges Morris and Martin concur.