Frahm v. Carlson

• Decision Date: 03 June 1983
• Docket Number: No. 82-256,82-256
• Citation: 214 Neb. 532,334 N.W.2d 795
• Parties: Charles E. FRAHM, Appellee, v. David E. CARLSON, Appellant.
• Court: Nebraska Supreme Court

Page 795

334 N.W.2d 795

214 Neb. 532

Charles E. FRAHM, Appellee, v. David E. CARLSON, Appellant.

No. 82-256.

Supreme Court of Nebraska.

June 3, 1983.

Syllabus by the Court

1. Directed Verdict. A motion for directed verdict must be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. Directed Verdict. In every case, before the evidence is submitted to the jury there is a preliminary question for the court to decide when properly raised, not whether there is literally no evidence but whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it upon whom the burden of proof is imposed.

3. Insurance: Releases. Where one who has sustained personal injuries, and with his attention directed to the known injuries, which are trivial in their nature, contracts for the settlement of his damages with reference thereto, in ignorance of other and more serious injuries, both parties at the time believing that the known injuries are all the injuries sustained, then there is a mutual mistake, and the release, although couched in general terms, should be held not to be a bar to an action for the more serious and unknown injuries.

Ray C. Simmons of Ray C. Simmons, P.C., Fremont, for appellant.

Clarence E. Mock of Johnson & Mock, Oakland, for appellee.

McCOWN, HASTINGS, and SHANAHAN, JJ., and BRODKEY, J., Retired, and COLWELL, District Judge, Retired.

COLWELL, District Judge, Retired.

Defendant, David E. Carlson, appeals a $35,000 personal injury jury verdict awarded to plaintiff, Charles E. Frahm, a 43-year-old farmer. The main issue concerns a written release executed by plaintiff containing an "injuries, known and unknown," clause, which plaintiff claimed was void because of mutual mistake. We affirm.

Briefly, the accident occurred on June 22, 1978, in Oakland, Nebraska, when Carlson backed out of a driveway into Frahm's car occupied by his wife, Clara, daughter Debbie, two sons, and Charles. Charles, Clara, and Debbie were examined by Dr. Gayle Petersen, M.D. Frahm struck his forehead on a car doorpost; he complained of a headache, dizziness, and being sick at his stomach. Aspirin was prescribed, and the doctor said his reported symptoms would go away. Frahm's car was totaled; he claimed it was worth $3,500. On July 5, 1978, Frahm executed a release that recited in part, "For The Sole Consideration of Three-thousand- five-hundred-fifty-and-no 100 Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges David E. Carlson ... from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 22nd day of June, 1978 ...." (Emphasis supplied.) Frahm's headaches persisted; in September 1978 he began to have pains in his neck and arms, which continued to worsen; December 19, 1978, he again consulted Dr. Petersen, who referred him to Dr. John L. Greene, M.D., a neurological surgeon in Omaha, Nebraska. Dr. Greene diagnosed Frahm's condition as a herniated disc between the 5th and 6th cervical vertebrae. Fusion surgery followed. The neck pain continued, and Frahm received further medical treatment from Dr. Lonnie Mercier, M.D., orthopedic surgeon, and Dr. J. Whitney Kelley, M.D. At the time of trial Frahm continued to have headaches and pain in his neck and arms.

Assigned errors 1 and 2 concern the denial of defendant's motion for directed verdict made at the close of the evidence.

"In every case, before the evidence is submitted to the jury there is a preliminary question for the court to decide when properly raised, not whether there is literally no evidence but whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it upon whom the burden of proof is imposed." Edward Peterson Co. v. Ulysses S. Schlueter Constr. Co., 179 Neb. 883, 888-89, 140 N.W.2d 830, 833 (1966).

"A motion for directed verdict must be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence." Hansen v. Hasenkamp, 192 Neb. 530, 534, 223 N.W.2d 44, 47 (1974).

First, defendant claims that the release was binding on plaintiff and that he failed to meet his burden to prove that mutual mistake invalidated the release.

It is the majority rule that a release of personal injury claims may be avoided on grounds of mutual mistake as to the nature and extent of the injury sustained. See, Annot., 13 A.L.R.4th 686, 694 (1982); Annot., 71 A.L.R.2d 82 (1960); 66 Am.Jur.2d Release §§ 30, 32 (1973). Nebraska has long followed that rule, as discussed in Simpson v. Omaha & C.B. Street R. Co., 107 Neb. 779, 782-83, 186 N.W. 1001, 1003 (1922): "What we believe to be the true rule is that the mistake must relate to either a present or past fact or facts that are material to the contract of settlement, and not to an opinion as to future conditions as the result of present known facts.... [W]here the mistake is as to the extent of the injury due to unknown conditions or relates to injuries that were wholly unknown, then the release may be avoided, unless it further appears that the parties were contracting with respect to possible unknown injuries, and the releasor intended to relinquish all claims, whether known or unknown. In the latter case there would be no mutual mistake. Where one who has sustained personal injuries, and with his attention directed to the known injuries, which are trivial in their nature, contracts for the settlement of his damages with reference thereto, in ignorance of other and more serious injuries, both parties at the time believing that the known injuries are all the injuries sustained, then there is a mutual mistake, and the release, although couched in general terms, should be held not to be a bar to an action for the more serious and unknown injuries." (Emphasis supplied.)

In Simpson claimant fell while boarding a streetcar. The only known personal injuries were skin scratches. The $50 release was for torn clothing. After a few months serious physical and emotional resulting injuries developed. The release recited that the defendant was released " 'from any and all cause or causes of action, costs, charges, claim or demand, of whatever name or nature, in any manner arising or to grow out of an accident occurring ....' " Id. at 780, 186 N.W. at 1002. The Simpson rule was followed in Collins v. Hughes & Riddle, 134 Neb. 380, 384, 278 N.W. 888, 891 (1938), where the release contained the term, " 'injuries, known & unknown.' " See, also, McCamley v. Shockey, 636 F.2d 256 (8th...