Nilsson v. Krueger

• Decision Date: 27 May 1943
• Docket Number: 8573,8577.
• Citation: 9 N.W.2d 783,69 S.D. 312
• Parties: NILSSON v. KRUEGER et al. (two cases).
• Court: South Dakota Supreme Court

9 N.W.2d 783

69 S.D. 312

NILSSON v. KRUEGER et al. (two cases).

Nos. 8573, 8577.

Supreme Court of South Dakota

May 27, 1943

T. R. Johnson, of Sioux Falls, for appellant.

Frank P. Nuelle, of Omaha, Neb., and Bailey, Voorhees, Woods &amp Bottum and H. L. Fuller, all of Sioux Falls, for respondents.

ROBERTS Presiding Judge.

Plaintiff suffered an accidental injury arising out of and in the course of his employment. At the time of injury plaintiff and defendant employers and their insurer were governed by the Workmen's Compensation Act (SDC 64). Plaintiff and defendants entered into a compensation agreement. Subsequently the parties made an agreement for a lump-sum settlement and plaintiff signed a release "in final settlement and satisfaction of all claims for compensation." Plaintiff thereafter filed with the industrial commissioner application for additional compensation. The industrial commissioner granted the application and judgment of the circuit court affirming such award was reversed on appeal to this court on the ground that the commissioner was without jurisdiction to grant such additional compensation. Nilsson v. Krueger, S.D., 297 N.W 790. Plaintiff then instituted the present action to set aside the release alleging mutual mistake as to his condition at the time settlement was made and the release was signed. The court entered findings of fact in plaintiff's favor but upon such findings concluded as a matter of law that plaintiff was not entitled to relief and that the complaint should be dismissed on the merits. The court accordingly entered a judgment of dismissal and plaintiff appeals.

Appellant assigns error upon the refusal of the court to adopt conclusion of law to the effect that he was not barred by the release which he signed; upon the refusal of the court to make additional findings of fact upon motion for new trial and upon entry of judgment in favor of the defendants dismissing the action.

Defendants have also appealed from the judgment, contending that the judgment is erroneous to the extent that it is based upon the adoption of findings of fact requested by the plaintiff and that the court erred in its refusal to adopt findings proposed by defendants. The appeals have been consolidated by stipulation of the parties. A party cannot appeal from a judgment or decree in his favor since he is not thereby aggrieved. Woods v. Pollard, 14 S.D. 44, 84 N.W. 214; Severin v. Medearis, 46 S.D. 408, 193 N.W. 138. If this court were to hold that the release does not bar recovery by plaintiff, the cause would be remanded to the trial court and such judgment would be entered as the findings of fact warranted. Any aggrieved party could then appeal from such judgment. This is not an appeal by defendants from so much of a judgment as is unfavorable and gave relief against them, and we therefore hold that they did not have the right of appeal. Such appeal should be dismissed and it is so ordered.

A brief statement of undisputed facts in this case are as follows: Plaintiff strained his back while lifting a sack of potatoes from a truck; that too affected his right hip and leg. The accidental injury occurred on August 13, 1935. Plaintiff was examined by insurer's physician who concluded that there was an obstruction in the spinal canal at the level of the third and fourth lumbar vertebrae and suggested an exploratory operation by the Mayo Clinic. A short time later plaintiff went to such clinic and his injury was diagnosed as a "right sciatic syndrome, secondary to a lumbosacral strain." Plaintiff as we have stated thereafter entered into a compensation agreement with defendant employers and their insurer for compensation at the rate of $15 per week from the time of the accident "until terminated in accordance with the provisions of the Workmen's Compensation Law." The agreement does not set forth the status of plaintiff's disability. The nature of the injury is referred to therein as a "hurt hip and back." Plaintiff signed on April 25, 1936, the release referred to and received $490 as consideration for the release. Plaintiff shortly thereafter resumed his employment with defendant employers and continued in such employment until December, 1940. February 1, 1939, plaintiff filed with the industrial commissioner the petition for additional compensation.

The trial court found:

"That the plaintiff, after such treatment and observation at said Mayo Clinic and prior to returning to work for the defendant employers and before signing the said receipt *** inquired of such physicians and surgeons, particularly Dr. Woltman, as to the probability of his further incapacity and when his injury or disability would end, or clear up, so as to enable him to resume the original work he had been doing prior to said injury and accident. *** That the said Dr. Woltman thereupon stated, represented, and told the plaintiff that he thought that eventually his disability would disappear or clear up; that he could return to work for the said employers but that he should take it easy and not do any heavy lifting but gradually work into it; that both the plaintiff and the defendant insurer relied upon the said statements and representations of said Doctors, especially Dr. Woltman, as hereinbefore set forth, which statements and representations of the said Dr. Woltman, although erroneous, were made in good faith and based upon existing facts upon which the said plaintiff and the defendant insurer had a right to, and did at said time, rely. *** That if the plaintiff had known he would have a reoccurrence or aggravation of his injury or that it would not clear up or get well, a fact upon which he relied as hereinbefore set forth, he would not have executed the said release. That the plaintiff, subsequent to the time of returning to work for the said employers, has been unable to perform the labor or work which he was engaged in at the time of the accident or injury. That he has suffered continuous pain to his back since he returned to work, causing it to be difficult, in fact impossible, for him to perform or do the work he did prior to the accident or injury. That said injury has permanently impaired the plaintiff's physical condition; that he has suffered a permanent partial incapacity from such injury; that his present physical condition is directly attributable to such injury; that after the plaintiff's return to work for his employers instead of getting well or better his physical condition has gradually been growing worse, and if the plaintiff had known the nature and extent of his injury at the time he signed the receipt *** he would not have done so."

A release is a contract and as such is subject to rescission for the same reasons as other contracts, including mistake of fact. This is in accordance with the elementary rule that no contract results where the parties labored under such a mistake of fact...