Opinion
No. 73-377
Decided September 24, 1974. Rehearing denied October 22, 1974. Certiorari granted December 23, 1974.
In personal injury action arising out of automobile accident, the principal defense to the action was predicated on plaintiff having executed a written general release. From judgment for defendant, plaintiff appealed.
Reversed
1. RELEASE — Mutual Mistake — Set Aside — Conditions Stated. In order to set aside a general release on the grounds of mutual mistake, the parties, at the time of the execution of the release, must have been mutually mistaken as to a material fact either then existing or having existed in the past.
2. Mistake — In Prognosis — As to Unknown Injury — Distinguished — Ignorance of Injury's Existence — Mutual Mistake — Release Ineffective. In regard to a release executed relative to personal injuries suffered, a mistake in prognosis relates to the extent or seriousness of a known injury and is considered a "mistake of opinion," while a mistake of a past or present material fact, in this context, concerns the existence of injuries which are as yet undetected or unknown, thus, where plaintiff's injury was in existence at the time of execution of general release but was as yet undetected and unknown, ignorance of its existence was a mistake as to an existing fact, and release executed under this mutually mistaken belief was ineffective.
Appeal from the District Court of the County of Boulder, Honorable John B. Barnard, Judge.
Taussig Cobb, John G. Taussig, Jr., for plaintiff-appellant.
Montgomery, Little, Young, Ogilvie Campbell, Robert R. Montgomery, for defendant-appellee.
Plaintiff instituted this action against defendant to recover damages for personal injuries resulting from an automobile accident. Defendant's principal defense to the action was that plaintiff was estopped from asserting any claims by reason of her having executed a written general release of all her claims arising out of the accident. After a trial to the court, judgment was entered for defendant. We reverse.
The sole issue presented for review is whether, under the facts of this case, the general release which plaintiff signed and which purported to release all claims as to known and unknown injuries is ineffective as a matter of law, because it was negotiated, executed, and accepted under the mutually mistaken belief that there were no existing injuries which were not already known to both parties.
Plaintiff was a passenger in a vehicle which was struck by a vehicle operated by defendant. The parties stipulated that defendant's negligence was the sole cause of the collision. At trial, the court found: (1) That the injury complained of was caused by the accident; (2) that the release was fairly and openly negotiated by the parties and that the consideration of $600 paid for the release was adequate under the circumstances known to the parties at the time of its execution; (3) that the injury complained of and for which plaintiff seeks damages was completely unknown to the parties at the time of execution of the release; and (4) that, therefore, the parties executed the release under the mutually mistaken belief that there was no injuries other than those of which the parties had knowledge. The court also found that plaintiff had incurred medical expenses in the amount of $2,076.99 and had sustained in addition $3,500 for pain, suffering and permanent disability. These findings of fact are not disputed by the parties. The court then concluded, as a matter of law, that plaintiff was not entitled to recover these damages because the prior release was valid and enforceable.
[1] In order to set aside a general release on the grounds of mutual mistake, the parties, at the time of the execution of the release, must have been mutually mistaken as to a material fact either then existing or having existed in the past. Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28. See McCarthy v. Eddings, 109 Colo. 526, 127 P.2d 883; Annot., 71 A.L.R.2d 82. In Davis, the Supreme Court, in considering application of a release similar to the one here in question, distinguished between a mistake as to prognosis for recovery from the injury and a mistake as to a past or presently existing fact. A mistake in prognosis relates to the extent or seriousness of a known injury and is considered a "mistake of opinion," while a mistake of a past or present material fact, in this context, concerns the existence of injuries which are as yet undetected or unknown. In the instant case, the injury was in existence at the time of execution of the release but was as yet undetected and unknown, and therefore, ignorance of its existence was a mistake as to an existing fact.
[2] Therefore, we rule that the release in question here was ineffective, as to the unknown injury, because it was executed under the mutually mistaken belief that all of the serious injuries which plaintiff had suffered as a result of the accident were known at the time of execution of the release.
The trial court made detailed findings as to plaintiff's damages and ascertained that sum to be $2,076.99 for medical expenses and $3,500 for pain, suffering, disability and permanent injury. Since the amount of damages is undisputed, and the only issue upon review is the validity of the release, we direct the trial court to enter judgment in favor of plaintiff in the amount of $5,576.99 less the $600 previously paid. See Globe Express Co. v. Taylor, 61 Colo. 430, 158 P. 717.
Judgment reversed and cause remanded with directions to enter judgment in accordance herewith.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.