Mack v. Albee Press, Inc.

Untermyer, J. On March 14, 1939, the plaintiff, then sixty-two years of age, suffered injury at the defendant’s premises in New York city. The injury was caused by the fall upon the plaintiff’s left foot of a heavy printer’s knife enclosed in a wooden case. The defendant has stipulated that the finding of the jury to the effect that the accident was caused by the defendant’s negligence and without contributory negligence on the part of the [276] plaintiff will not be assailed on this appeal. After the accident the plaintiff was taken to the office of his physician for an examination of the injury. According to the plaintiff “ the toes. were discolored, and so was the whole foot discolored, and I had very much pain.” X-rays of the foot established that there were no broken bones. At the time of the accident it was known to the plaintiff, but unknown to the defendant and its representatives, that the plaintiff was suffering from diabetes. The medical testimony reveals that an injury, particularly to the foot of persons thus afflicted, frequently results in gangrene and the amputation of the leg. The plaintiff’s physician, called as a witness by the plaintiff, testified that he had warned the plaintiff that “ he had the bruised toe, and he had to rest it, and he had to be very careful;” and also that, he “ told him that if he isn’t careful with his condition that eventually he would lose his leg. I always warn all diabetics about contusions, especially if it is in the foot.” The plaintiff did not deny this testimony given by his own witness, except to say that the physician had never told him that he would lose his leg. He admitted that the doctor had told him “ you can’t tell what bruises sometimes will turn out to be.” As a result of negotiations between the plaintiff and an adjuster representing a company by which the defendant was insured, the plaintiff, in April, 1941, executed and delivered a release to the defendant, releasing it from all causes of action and claims “ on account of or in any way growing out of any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about the 14th day of March 1939 * * and received in settlement the sum of $275. That amount was agreed upon in the .belief that the. plaintiff’s injury would make it necessary that he forego work for a period of five . weeks at a salary of forty-five dollars a week and that his doctor’s bill would amount to about fifty dollars. The plaintiff testified that in signing the release he was also influenced by the opinion of the physician who had examined him for the insurance company, communicated to him by the adjuster, that he would be confined to his home not longer than “ another two or three weeks,” and would, therefore, not be out of work “ more than about five weeks altogether.” He testified that at that time “ I started to feel better. My toes did not pain as much. My bone was bruised, I still had pain, but it wasn’t severe. And that is why I signed the release when he came up to see me again.” Some time after executing the release the condition of the plain-. tiff’s foot commenced to deteriorate due to the diabetes from which [277] he suffered, gangrene set in and not long thereafter it became necessary to amputate the leg. For the injury thus sustained the plaintiff has recovered judgment for $25,000 upon the theory that the release was executed under a mutual mistake of fact. That mistake of fact is described in the plaintiff’s bill of particulars as follows: “ Mistake of fact relied upon by the plaintiff is that he was not aware of the fact that he was to lose his leg at the time the alleged release was executed.” We think the record does not disclose any mutual mistake of fact, although it discloses a miscalculation by both parties of the consequences of the plaintiff’s injury. Neither the plaintiff nor the defendant was mistaken concerning the extent of the injury, nor was either party mistaken concerning its character. The plaintiff knew, although the defendant’s representatives did not know, that he was a sufferer from diabetes and, at least so far as concerns him, there was in this no mistake of fact. The plaintiff appears also to have known, although the absence of such knowledge would not necessarily affect the decision in the present case, that the consequences of such an injury to a diabetic might be very serious indeed. What the parties did not know was the tragic fact that the injury would result in the amputation of the plaintiff’s leg. It may have been precisely this 'uncertainty, inherent in all calculations of the future, which induced the plaintiff to accept less and the defendant to pay more than they would otherwise have accepted or paid. The rule of law which is applicable to these facts does not seem to be disputed. When the settlement is made on the assumption of the existence of a state of facts it may be rescinded if that state of facts does not presently exist. (Landau v. Hertz Drivurself Stations, Inc., 237 App. Div. 141; Great Northern R. Co. v. Fowler, 136 Fed. 118,121.) Where, however, there is no mistake concerning the injuries but only a miscalculation of consequences, the voluntary settlement of the parties is irrevocable as to both, (Farrington v. Harlem Savings Bank, 280 N. Y. 1, 4; Miles v. New York Central R. R. Co., 195 App. Div. 748; appeal dismissed, 233 N. Y. 644; Chicago & N. W. R. Co. v. Wilcox, 116 Fed. 913.) Neither party may then rescind merely because the consequences of a known injury are more serious or less serious than had been anticipated. Such uncertainties are presumed to have been considered when the parties agreed upon the adjustment of their claims. (Sears v. Grand Lodge A. O. U. W., 163 N. Y. 374, 378; Kowalke v. Milwaukee Electric R. & Light Co., 103 Wis. 472, 479; 79 N. W. 762.) Otherwise, settlements fairly arrived at and releases voluntarily given become futile and nugatory, to be disregarded whenever the [278] course of events reveals that too much or too little has been paid. (Dambmann v. Schulting, 75 N. Y. 55, 64; Kowalke v. Milwaukee Electric R. & Light Co., supra.) Although this may result in hardship in some cases, no other rule will preserve the right of persons of mature judgment to agree in good faith upon the compromise of claims. The judgment should be reversed, with costs, and the complaint dismissed, with costs. Martin, P. J., O’Malley and Townley, JJ., concur; Glennon, J., dissents and votes to affirm.