Mitzel v. Schatz, 8587

• Decision Date: 21 March 1970
• Docket Number: No. 8587,8587
• Parties: Simon MITZEL, Plaintiff and Respondent, v. Kasper SCHATZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 659

175 N.W.2d 659

Simon MITZEL, Plaintiff and Respondent, v. Kasper SCHATZ, Defendant and Appellant.

No. 8587.

Supreme Court of North Dakota.

March 21, 1970.

Syllabus by the Court

1. For reasons stated in the opinion we find that the trial court was correct in declining to decide contrary to the defendant's insistence the issue of liability when as a result of the defendant's motion the trial of the issue of liability had been severed from the trial of the issue of the effect of the release.

2. If the avoidance of litigation is sought to be accomplished by means of compensation, a material mistake in the measurement of compensation gives the right to have the release cancelled on the theory of cancellation for mutual mistake applicable to contracts generally.

3. For reasons stated in the opinion we conclude that the settlement made in the instant case was based upon compensation rather than upon merely the avoidance of litigation, the mutual mistake of fact being as to the nature and extent of the personal injuries suffered by the plaintiff.

4. A partial rescission may be allowed where the contract is a divisible one and the ground of rescission relates merely to a severable part.

5. Sections 9--08--08 and 9--08--09 N.D.C.C. provide a remedy in addition to the provisions of Section 9--09--04 N.D.C.C. and accordingly an action brought under Section 9--09--04 N.D.C.C. is subject only to the statute of limitations contained in Section 28--01--16.

6. Generally, if there is a question which statute of limitations applies, the longer term applies.

7. A mutual mistake of the nature and extent of personal injuries may justify rescission of a release for personal injuries which by its terms covers unknown injuries.

8. The fundamental test of ratification by conduct is whether the releasor, with full knowledge of the material facts entitling him to rescind, has engaged in some unequivocal conduct giving rise to a reasonable inference that he intended the conduct to amount to a ratification. In order to be held to have ratified a release, the releasor must or should have had knowledge of the material facts and circumstances.

Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for appellant.

Vogel, Bair & Graff, Mandan, for respondent, and Robert Chesrown, Linton.

ERICKSTAD, Judge.

This is the second time this case has been before this court. On the first occasion, procedural questions were determined by decision rendered December 10, 1968, 167 N.W.2d 519.

By summons and complaint dated February 22, 1967, Simon Mitzel initiated an action against Kasper Schatz in which he sought to recover for personal injuries allegedly suffered in an intersectional accident which occurred on November 15, 1965, on a county road 1 1/2 miles east of Zeeland in McIntosh County.

The complaint asserted that Mr. Mitzel's injuries were the result of the negligent operation of a motor vehicle by Mr. Schatz.

Mr. Schatz responded by answer dated March 17, 1967, and amended answer dated November 15, 1967. He admitted that a two-car accident occurred on the date and at the place alleged in the complaint but specifically denied that he was in any way negligent in the operation of his automobile. He further alleged that the accident was caused wholly by the negligence of Simon Mitzel and his son Richard. For a separate defense he alleged that on November 18, 1965, for valuable consideration Simon Mitzel released him and others from 'any and all known and unknown actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation, rights of contribution and all consequent damages on account or in any way growing out of any and all known and unknown personal injuries and property damage and death resulting or to result from an accident that occurred on or about the 15th day of November, 1965, near Zeeland, North Dakota;' and that by virtue of said release, Simon Mitzel no longer had a cause of action against him.

Mr. Mitzel anticipated this defense by including in his complaint an allegation that the release given was in settlement only of the property damage to his automobile. He further asserted: 'That if the defendant alleges, or if it is hereafter established, that any part of said settlement was for personal injuries received in said accident, the plaintiff hereby rescinds said settlement upon the ground that said release was given by mistake in that the plaintiff was not aware that he had suffered any serious personal injury in said accident and was specifically not aware that he had suffered brain damage as a result of said accident, and further that said release was obtained by fraud, and the plaintiff hereby offers to restore any and all things of value received from defendant as fully and completely as if said release had never been given.'

Following a hearing on a motion to sever the issue of whether the release given precluded Simon Mitzel from recovering from Mr. Schatz for his personal injuries, the court granted said motion and set that issue down for separate trial to the court without a jury. Following that trial the court concluded that the release which was executed by Mr. Mitzel on November 18, 1965, was executed under a mistake of fact in respect to the personal injuries that Mr. Mitzel had sustained as a result of the automobile accident. It held that Mr. Mitzel was entitled to have judgment rescinding the release in respect to the settlement of the personal injury claim and that the release was not a bar to the instant action for damages for personal injuries. Pursuant to the findings of fact, conclusions of law, and order for judgment dated March 5, 1968, judgment dated March 13, 1968, was entered.

By notice dated April 17, 1968, Mr. Schatz appealed. Following the service of this notice upon him, Mr. Mitzel made a motion in this court for a dismissal of the appeal on the following grounds:

(1) The judgment of the district court is interlocutory in nature and does not adjudicate all of the rights and claims of the parties in the pending action; and

(2) The judgment does not comply with the provisions of N.D.R.Civ.P. 54(b).

Following service of this motion upon him, Mr. Schatz moved the court ex parte, citing N.D.R.Civ.P. 60, for an order nunc pro tunc correcting the conclusions of law, order for judgment, and judgment dated March 13, 1968, to provide, pursuant to N.D.R.Civ.P. 54(b), that there was no just reason for delay and to expressly direct the entry of judgment. The court granted this motion, and in its order of September 28, 1968, expressly determined that there was no just reason for delay and directed the entry of judgment to be effective as of the date of the original judgment. A document entitled 'Judgment on Separate Trial' identical to the original judgment was thereafter executed on September 30, 1968, by the Clerk of the District Court of McIntosh County.

We held the first Mitzel appeal was premature, it having been taken before the determination and direction required by Rule 54(b) were made.

The instant appeal arises out of a notice of appeal dated March 31, 1969, from the amended judgment of the district court dated September 30, 1968. A trial de novo is demanded in this court.

In this appeal Mr. Schatz has asserted numerous specifications of error, which we shall consider in the order in which he has stated them in his brief.

Specification of error No. 1: 'The trial court erred in refusing to allow the defendant to go into the issue of liability and to prove settlement based on a disputed, extremely doubtful claim because the facts without dispute tended to show a collision between two vehicles coming at right angles together in the center of a wide-open, unobstructed intersection with the plaintiff's driver's negligence imputable to the plaintiff so that plaintiff was chargeable with contributory negligence as a matter of law.'

Mr. Schatz asserts that the Locus in quo was a level, wide-open, unobstructed rural intersection with each vehicle converging upon the other at a right angle, that there were no distracting circumstances or weather or atmospheric conditions contributing to the collision, and that under such circumstances both drivers were negligent as a matter of law. In support thereof he cites Knudsen v. Arendt, 79 N.D. 316, 56 N.W.2d 340 (1952); Johnson v. Sebens, 86 N.W.2d 386, 391 (N.D.1957); and Thompson v. Nettum, 163 N.W.2d 91 (N.D.1968). He further asserts that the evidence which the trial court refused to consider would have imputed to Mr. Mitzel his son's negligence as the driver. To support this contention, Mr. Schatz merely refers us to parts of the transcript, including that part containing the offer of proof. He refers us to no statutes or decisions in support of his position that, under the facts as asserted in the offer of proof and otherwise, the negligence of the son must be imputed to the father.

The decisions cited in contending negligence of both drivers are distinguishable from this case on facts. In Knudsen, the litigation arose out of a collision between a car driven by the plaintiff's decedent and one driven by the defendant, both drivers being alone in their cars at the time of the collision. The plaintiff's decedent died as the result of injuries he suffered in the collision, and the defendant testified that as a result of the injuries he suffered from the collision he had no recollection of the collision or of the events immediately preceding it. There were no other witnesses to the collision. In Johnson, the supreme court held that the trial court committed error in granting the defendant's motion for a directed verdict, but found the error to be without prejudice for the reason that there was no material conflict in the testimony of the parties. In Thompson, both drivers involved in an intersectional collision suffered from retrograde amnesia and there were no other eyewitnesses to the collision.

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