Finch v. Carlton

516 P.2d 212, 10 Wash. App. 32, 1973 Wash. App. LEXIS 1079

• Court: Court of Appeals of Washington
• Decided: November 30, 1973
• Docket: 663-3
• Status: Published

Opinions

Green, C.J.

Plaintiff, Daniel R. Finch, appeals from an order granting summary judgment in favor of defendants, Douglas and Barbara Carlton. The appeal comes to this court upon an agreed statement of facts.

Plaintiff’s complaint alleges that on March 7, 1970, defendant negligently drove his automobile in such a manner as to collide with plaintiff’s automobile in Dayton; that plaintiff sustained serious personal injuries; and that such injuries were the proximate result of defendants’ negligence. Defendant denied these allegations and alleged as an affirmative defense that plaintiff had executed a full release of all claims arising from that collision.

Both parties moved for summary judgment, plaintiff seeking to have the release set aside. Plaintiff’s 'affidavit in support of his motion shows that as a result of the collision plaintiff incurred an automobile repair bill in the amount of $880.21. Before the dealer would release the repaired automobile, this bill was required to be paid in full. Plaintiff was financially unable to pay the bill and sought payment through defendants’ insurance carrier. Before the bill would be paid in this manner, plaintiff was requested to sign a release of all claims as follows:

Release of All Claims

For and in Consideration of the delivery of a draft or check to the undersigned in the sum of Eight hundred Eighty and 21/100 ($880.21), receipt of which is hereby acknowledged, each of the undersigned does hereby release and forever discharge Douglas W. Carlton, Jr. et al of and from all claims, demands, damages, actions or causes of action, whether on account of damage to property, bodily injuries or death, resulting or to result from an accident which occurred on or about the 7 day of March, 1970, at or near Front & Main Streets, Dayton, Washington.

It is understood and agreed that this is a Full and Final Release in full compromise settlement of all claims of every nature and kind whatsoever, and releases all claims whether known or unknown; suspected or unsuspected.

Each of the undersigned states that this release has been carefully read by and is signed as the free act and deed of such undersigned.

Dated this 7 day of April, 1970.

Witnesses to Signature: Read Before Signing Below

(1) ...................................................... x_Dan Finch_

(Italics ours.) At that time, plaintiff was unaware that he had any physical injuries and states that he did not contemplate executing a release for “personal injuries or for t any other reason other than injury to his automobile.” In a signed statement delivered to the insurance adjuster, plaintiff states: “Injuries None ,”

The insurance adjuster’s affidavit filed on behalf of defendants states that on March 10, 1970, plaintiff discussed the accident with him and signed the statement referred to above which was in plaintiff’s own handwriting. The adjuster also states that plaintiff was in his claims office several times, discussing the damage to his car and at no time did he ever mention that he had any personal injuries; that plaintiff told him he had no injuries; that at the time plaintiff signed the release on April 7, 1970, the adjuster was of the opinion that plaintiff fully understood and had read the release; and that based thereon, the $880.21 repair bill was paid on behalf of defendants.

The agreed statement of facts states that the claim form was filled out cooperatively by the plaintiff and the plaintiff claimed no injuries at that time. In June 1970, plaintiff became ill, consulted a number of physicians and incurred medical expenses for treatment of internal injuries which he claims were caused by the accident of March 7,1970.

The trial court granted summary judgment in defendant’s favor, holding that the release was effective and precluded plaintiff’s claim for personal injuries arising out of the collision. We believe that Pepper v. Evanson, 70 Wn.2d 309, 422 P.2d 817 (1967), controls and requires that the summary judgment be affirmed.

In Pepper, the injured party knew of an injury to the “right side of his neck and his right arm” prior to and at the time of executing a release almost identical to the release in the instant case. Thereafter, the injured party discovered injuries to the other shoulder. The granting of summary judgment was affirmed on appeal. After setting forth the general rules applicable to the upsetting of releases for mutual mistake, the court said at page 313:

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 Wn.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. Harry W. Robbins & Co., 48 Wn.2d 22, 25, 290 P.2d 984 (1955). In this latter case we qúoted 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 Wn.2d 621, 409 P.2d 143 (1965).

In the instant case, the defendant had no independent knowledge of any injury by the plaintiff and accepted plaintiff’s own diagnosis and opinion that he had no personal injury. Under the reasoning in Pepper, mutual mistake does not apply. Further, the release itself imported a general discharge inasmuch as its terms provided that all claims “on account of damage to property, bodily injuries . . . whether known or unknown; suspected or unsuspected” be released. As the court said in Pepper, at page 314:

There is nothing in the release from which any inference can be drawn but that the parties intended fully to settle thereby any and all unknown and unforeseen claims arising out of the accident. Indeed, appellant does not argue that the insurance carrier did not intend to include these words in the release.

Plaintiff does not argue before this court that in executing the general release he was a victim of fraud, duress, false representation or overreaching.

We recognize that certain jurisdictions have applied a different rule, as pointed out in the dissent. However, that rule was in effect in most of those jurisdictions at the time Pepper and the cases cited therein were decided. Both Pepper and the instant case involve injuries coming to light subsequent to the execution of a release of all claims. Thus, we believe the holding in Pepper is clearly applicable to the instant case and is presently the law of Washington. Judgment affirmed.

Munson, J., concurs.