Krezinski v. Hay

• Decision Date: 17 May 1977
• Docket Number: No. 75-295,75-295
• Citation: 253 N.W.2d 522,77 Wis.2d 569
• Parties: Judith A. KREZINSKI, Plaintiff-Appellant, v. Izetta L. HAY and Milwaukee Mutual Insurance Company, a Domestic Corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 522

253 N.W.2d 522

77 Wis.2d 569

Judith A. KREZINSKI, Plaintiff-Appellant, v. Izetta L. HAY and Milwaukee Mutual Insurance Company, a Domestic Corporation, Defendants-Respondents.

No. 75-295.

Supreme Court of Wisconsin.

Argued Dec. 1, 1976.

Decided May 17, 1977.

John Theiler Bode, Racine, for appellant; Foley & Capwell, S. C., Racine, on briefs.

C. James Heft and Heft, Dye, Heft & Paulson, Racine, on brief, for respondents.

DAY, Justice.

The question in this action for damages for personal injury is whether Judith A. Krezinski (plaintiff) presented sufficient facts in opposition to Izetta L. Hay's and Milwaukee Mutual Insurance Company's (defendants) motion for summary judgment based on a release, to raise a triable issue of fact as to whether such release executed by the plaintiff was the result of mutual mistake and hence voidable.

We hold based on this court's ruling in the case of Doyle v. Teasdale, 263 Wis. 328, 336, 57 N.W.2d 381 (1953) that an issue of fact is presented as to whether or not the release, admittedly signed by the plaintiff prior to bringing this action was the result of a mutual mistake of fact on the part of the plaintiff, the examining physician and the defendants.

The plaintiff brought action against Ms. Izetta Hay and her insurer for damages resulting from Ms. Hay's negligent operation of her automobile on State Trunk Highway 31 in Racine county on September 28, 1963. According to the complaint, the plaintiff was driving north on the highway when the defendant negligently drove her car onto the highway from a driveway causing the two automobiles to collide. The plaintiff alleged that she sustained injuries, "among others, traumatic epilepsy, contusions to scalp occipito parietal area, cervical sprain and right dorsal myositis; numerous other abrasions, contusions and lacerations; severe pain and suffering, shock and mental anguish."

The defendants' answer denied negligent conduct and set forth various affirmative defenses, among which was that on September 5, 1969, the plaintiff, while represented by counsel, executed a release of all claims against the defendants, "in any way growing out of, any and all known and unknown personal injuries, developed or undeveloped, including death and property damage resulting or to result from an accident that occurred on or about the 28th day of September, 1968." The agreement acknowledged receipt by plaintiff of $2,300 as consideration for the release.

The plaintiff filed a reply admitting execution of the release but alleging she and the defendants relied and acted upon a mutual mistake of fact. That mistake was their ignorance the plaintiff was suffering from a latent but present condition as a result of the accident which later manifested itself by grand mal epileptic seizures. This epileptic condition was not observed by plaintiff's physician prior to execution of the release.

The defendant moved for summary judgment on November 11, 1974. Affidavits in support of and opposition to the motion were filed. These affidavits set forth the plaintiff's medical history both before and after the collision. The trial court filed a memorandum decision in favor of the defendants on April 24, 1975 and summary judgment in favor of the defendants was entered May 16, 1975.

The rules concerning disposition of motions for summary judgment were recently stated in College Mobile Home Park & Sales v. Hoffman, 72 Wis.2d 514, 521, 241 N.W.2d 174, 178 (1976) as follows:

". . . Summary judgment is proper only where there is no material issue of fact and the question presented is solely one of law. If there is a dispute as to the material facts, if different inferences might be drawn from the facts, or if the application of the controlling law to the facts is uncertain, summary judgment should not be granted."

The detailed procedure to be followed by the trial court in such a case is also well established.

Initially it requires an examination of the pleadings to determine whether a cause of action has been stated and whether material issues of fact are presented. The allegations of the pleadings, however, may not be considered as evidence or other proof on a disposition of a motion for summary judgment. Assuming a cause of action and the existence of factual issues, an examination is then made of the moving party's (defendants') affidavits and other proof to determine whether a prima facie defense has been established. If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (plaintiff's) affidavit and other proof to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. Peninsular Carpets, Inc. v. Bradley Homes, Inc., 58 Wis.2d 405, 410, 411, 206 N.W.2d 408 (1973), Ricchio v. Oberst, 76 Wis.2d 545, 551, 251 N.W.2d 781 (1977).

Under this procedure, the question is whether the plaintiff's affidavit and other proof reveal disputed material facts or undisputed material facts from which reasonable inferences may be drawn raising a triable issue concerning alleged mutual reliance upon a mistake of fact.

Releases will be set aside on the ground of mistake only where the mistake is mutual and not unilateral. Doyle v. Teasdale, supra, 263 Wis. 263 at 336, 57 N.W.2d 381. The mistake of fact must be past or present "for it is obvious that the coming into existence of any future fact must at the time of contracting have been understood to rest in conjecture, and the contingency thereof to have been assumed by both parties." Kowalke v. Milwaukee Electric Rwy. & Light Co., 103 Wis. 472, 79 N.W. 762, 764 (1899).

The seemingly all-inclusive language of the release before us is not dispositive of whether there was a mutual mistake of fact.

"(E)ven though a release expressly covers unknown injuries, it is not a bar to an action for such unknown injuries if it can be shown that such unknown injuries were not within the contemplation of the parties when the settlement was agreed upon; however, if the parties did in fact intentionally agree upon a settlement for unknown injuries, such release will be binding. Whether the parties intended the release to cover unknown injuries is usually a question of fact." Doyle, supra, 263 Wis. at 346, 57 N.W.2d at 389, quoting Aronovitch v. Levy, 238 Minn. 237, 56 N.W.2d 570 (1953).

In the Doyle case, supra, plaintiff had given a release based on a diagnosis of which in part was "sprained back." Subsequent to execution of the release, it was determined that the plaintiff had also injured the coccyx which had to be surgically removed. The question became whether there was a mutual mistake by the parties in relying on a diagnosis of sprained back when the plaintiff claimed that in fact his coccyx was fractured. This court in Doyle said at 263 Wis. 337, at 57 N.W.2d 385,

"While the term 'sprained back' is broad enough to cover an injury confined solely to the ligaments of the coccyx, it would not include a fracture of any of the bones comprising the spine. Therefore in the instant case, where both parties entered into the settlement which was consummated by Doyle executing the release in reliance on the statement in the written medical report . . . that diagnosed the back injury as a 'sprained back', there would be a mutual mistake of fact if it later developed that there was a bone fracture."

The case was returned to the trial court for findings as to whether or not...