Pepper v. Evanson

• Decision Date: 19 January 1967
• Docket Number: No. 38566,38566
• Citation: 422 P.2d 817,70 Wn.2d 309
• Court: Washington Supreme Court
• Parties: Delmar E. PEPPER and Juanita Pepper, his wife, Appellants, v. Gerald Norman EVANSON and Jane Doe Evanson, his wife, Respondents.

Page 309

70 Wn.2d 309

422 P.2d 817

Delmar E. PEPPER and Juanita Pepper, his wife, Appellants, v. Gerald Norman EVANSON and Jane Doe Evanson, his wife, Respondents.

No. 38566.

Supreme Court of Washington, Department 2.

Jan. 19, 1967.

Carkeek, Harris, Harris, Myers & Vertrees, Ronald H. Mentele, Seattle, for appellants.

Ferguson & Burdell, Thomas J. Greenan, Seattle, for respondents.

LANGENBACH, Judge. ^*

On April 18, 1964, respondents' automobile struck the automobile of appellants, Mr. and Mrs. Pepper, in an allegedly negligent manner. (The wives are nominal parties and will not be further noticed.) Shortly after the accident, appellant experienced pains in the Right side of his neck and in his right arm. It was his opinion that the pains were caused by the 'reactivation' of an old injury. Two days after the accident he visited his physician.

Four days after the accident appellant submitted an accident report to respondent's insurance carrier. On June 10, 1964, he wrote the insurance company a letter which read in part:

To date I have visited Dr. Callahan, an osteopathic surgeon on Two occasions and talked with him on the phone once. The Dr.'s findings have been very inconclusive. I don't believe this is unusual for the type of injury involved.

In 1950 I visited several doctors for symptoms similar to those I now have and was unable to get a diagnosis. A short time later I visited the Mayo Clinic in Rochester, Minn. From this visit I learned I had a crushed cervical disc. I underwent surgery to have about one half of the disc removed. This experience involved nearly six years from the time of an accident in the Army until the disc slipped completely and surgery was necessary. The operation required eight days in the hospital, five weeks of lost time from work and several years before normal activities weren't troublesome to me.

The history of my past problem may or may not be important here, but it does give me some idea of what could develop. In fact, the distress I now have is not necessarily related to a healing or progressing condition. The injury could be getting better or worse.

Since the accident with Mr. Evanson I have had repeated pain in my head, neck, back, right arm, and cases of dizziness. The real significance of these symptoms is intangible, however it certainly limits my activities now and makes me wonder.

I would like very much to receive payment for my current expenses and leave the medical claim open. As you explained, this is not possible so I have tried to evaluate my position.

I don't know what your reaction will be to this offer but I believe it to be a logical and conscientious approach on my part. Because of the minimum liability considered and then reducing it by one half I would not be interested in setting for less than the $1,508.00.

On July 24, 1964, appellant signed a full and final general release of all claims arising out of the April accident. He accepted a check for $1,138 which he cashed.

Eight months later, early in 1965, a new disability arose in appellant's Left side. He was required to return to his doctor and extensive surgery was performed on his left side. One of his physicians told him the newly appeared disability was caused by the 1964 accident. Appellant filed this action for injuries to his left side, alleged to have been caused by the April accident. Respondent pleaded contributory negligence and the 'full and final' release as an affirmative defense. Appellant filed a reply which in part alleged that 'a mutual mistake of fact existed which at that time neither party had knowledge, thereby voiding any contract of release.'

Of course, a contract executed by parties who are mutually mistaken as to an existing material fact is not, for that reason, void. But, such a contract may, in certain circumstances, be rescinded in equity. We will treat appellant's reply to respondent's answer as a plea for relief in equity to remove the impediment (created by the release) to the maintenance of his action at law for damages.

A formal decree for cancellation of the release is not necessary. In nearly all jurisdictions the claimant merely brings his action for damages; and to a plea setting out the general release he makes replication of the facts showing the mistake that makes it voidable. * * * 3 Corbin, Contracts § 598 (1960).

Respondent moved for summary judgment based upon the pleadings and supporting affidavits. After a hearing, this motion was granted and appellant brought this appeal.

The only issue before us is whether the pleadings submitted to the trial court raised, when viewed most favorably to appellant's case, a genuine issue as to a material fact, which issue can not be determined on motion for summary judgment. Briefly, the respondent is seeking to test, by this motion, the issue of the alleged mutual mistake in the execution of the general release.

We are not dealing here with rescission by mutual assent of the parties. What the parties have brought together they may of course split asunder, saving always the rights of third parties. Here rescission of a contract of general release is being sought by only one of the parties.

The general rules applicable to the upsetting of releases for mutual mistake are easily stated:

1. When a release is in plain and unambiguous language, as is the release in this case, we have said that: (a) Before a plain, unambiguous instrument can be set aside on the ground of mutual mistake, the evidence must be clear and convincing. Spratt v. Northern P. Ry., 90 Wash. 592, 156 P. 563 (1916). (b) The courts will not interpret the meaning of unambiguous contracts. Silen v. Silen, 44 Wash.2d 884, 271 P.2d 674 (1954). (c) Where a release contains plain and unambiguous language, parol evidence will not be admitted to vary the release, Betcher v. Kunz, 112 Wash. 563, 192 P. 955 (1920); Unless the release was induced by fraud, false representations or overreaching. Reynolds v. Day, 93 Wash. 395, 161 P. 62 (1916).

2. A court of equity will limit a general release to matters contemplated by the parties at the time of its execution, Bakamus v. Albert, 1 Wash.2d 241, 95 P.2d 767 (1939); But that rule is not controlling when the release refers specifically to the matter being considered by the court, Schwieger v. Henry W. Robbins & Co., 48 Wash.2d 22, 25, 290 P.2d 984, 986 (1955). In this latter case we quoted the following language:

'(I)f the words of a release fairly import a general discharge, their effect may not be limited so as to exclude a demand simply upon proof that at the time of its execution the releasor had no knowledge of the existence of the demand.'

3. A mutual mistake must be one involving both parties, a mistake Independently made by each party. If the defendant had no independent knowledge and accepted plaintiff's own diagnosis and opinion, the mistake is unilateral. Beaver v. Estate of Harris, 67 Wash.Dec.2d 609, 409 P.2d 143 (1965).

4. The law favors the amicable settlement of claims when the settlement is secured without fraud, misrepresentation or overreaching. Beaver, supra.

It has been said that the truest test in cases involving mutual mistake is whether the contract would have been entered into had there been no mistake. Stahl v. Schwartz, 67 Wash. 25, 33, 120 P. 856 (1912). Here, the appellant must seek to show that the inclusion of the discharge for unknown claims was based upon a mutual mistake made Independently by each party, and that Neither party would (at the time of contracting) have intended to enter into the release had they a proper understanding of the material facts. Has the appellant raised a genuine issue of fact regarding the intention of respondent's insurance carrier? Two such questions are possible: (1) That the insurance carrier did not intend to include the discharge of unknown injuries in the release; or (2) that had it known the appellant had hidden...