1 Reported in 1 N.W.2d 608. In a suit for personal injury the defendants pleaded a release, which plaintiff sought to avoid on account of injuries unknown to either party at the time of its execution. The question whether the release should be avoided on that ground was, together with the other issues in the case, submitted to the jury, which found for defendants. The trial court granted a new trial for error in its charge.
1. In modifying one of plaintiff's requests for instructions, the court charged the jury with reference to the release as follows:
"With reference to the settlement and release which was entered into between plaintiff and defendants, you are instructed that if the plaintiff has proved by evidence which is clear and convincing that said settlement was made and the release was entered into with reference to injuries then known, and that it subsequently developed that a substantial injury then existed which was unknown to the parties, and a known injury at the time the release was signed subsequently developed unexpected consequences, neither of which were taken into consideration by the parties when said settlement was agreed upon, and that plaintiff did not intend to release claims for any unknown injuries, or for any known injury at the time the release was signed which subsequently developed unexpected consequences, then the release may be avoided on the ground of mutual mistake; but the burden is upon the plaintiff to prove such facts by evidence which is clear and convincing." (Italics supplied.)
Preceding this statement in the charge, the court had said that the plaintiff sought to avoid the release because both parties were mutually mistaken as to the real nature and character of the injuries sustained, as to plaintiff's condition at the time he signed the release, and that "they had no knowledge of any other injuries *Page 387 or injurious effects which the plaintiff had sustained." Later in the charge the court said:
"If you find from the evidence that the present disability of the plaintiff in this case is a consequence of injuries which were known to the plaintiff at the time of the execution of the release on March 1, then the plaintiff cannot recover."
This last statement of the law is conceded to be correct.
It is quite obvious that the trial court when it commenced to give the jury the law on the subject was under the erroneous impression that the plaintiff might avoid the release not only on the ground of unknown injuries, but also on the ground of unexpected consequences of known injuries. Plaintiff concedes that the latter ground is insufficient to justify avoidance of the release and that the charge, if it justified avoidance on either ground, was more favorable to the plaintiff than he was entitled to. What plaintiff contends is that the charge, read literally, required both grounds to be present in order to justify avoidance of the release.
If the trial court had denied the motion for a new trial on the ground that the use of the word "and" instead of "or" was an obvious inadvertence under the rule of Steinbauer v. Stone,85 Minn. 274, 88 N.W. 754, we should have been inclined to affirm. But, as we said in Mingo v. Extrand, 180 Minn. 395,399, 230 N.W. 895, a different situation is presented where a new trial has been granted because the trial court deems the error prejudicial and ground for a new trial. Under such circumstances, we will not reverse in the absence of a clear showing of error or abuse of discretion. As we said in that case, the granting of such a motion is largely a matter of sound judicial discretion, the trial court being in a better position than we are to determine whether the error in the charge was prejudicial. See cases cited on p. 399 in Mingo v. Extrand.
2. Defendants contend that the evidence is insufficient to establish that the injuries for which recovery is here sought were the proximate result of the collision for which they admit responsibility. *Page 388 A careful examination of the expert testimony discloses sufficient evidence, in our opinion, to make this a question for the jury.
3. Defendants further contend that the injury to plaintiff's brain was the unexpected consequence of a known injury and that therefore the release is binding under the rule of Richardson v. C. M. St. P. Ry. Co. 157 Minn. 474, 196 N.W. 643. The doctor's report on which the parties acted at the time of the execution of the release did not disclose any head or brain injuries, and on the evidence we think that a finding might be sustained that the release was executed in mutual mistake and in ignorance by both parties of any injury to head or brain.
4. Finally, it is urged that defendants are entitled to judgment as a matter of law on the ground that the release expressly covered unknown injuries. The release in terms discharged the defendants "of and from all claims, demands, damages, actions or causes of action, on account of injuries resulting, or to result, from an accident to my person * * * and of and from all claims or demands whatsoever in law or equity, which I, my heirs, executors, administrators or assigns can, shall or may have by reason of any matter, cause or thing whatsoever * * *" Unknown injuries are not expressly referred to in the release; but even if the release be construed as covering unknown injuries, that alone does not entitle defendants to judgment as a matter of law. The rule applied in Minnesota is that a release is incontestable only when the parties expressly and intentionally settle for unknown injuries and that therefore it is ordinarily a fact question for the jury whether the parties fixed the consideration by, and assumed as a basis for the release, known injuries, or whether they intended to compromise claims for all injuries, known or unknown. Hanson v. Northern States Power Co. 198 Minn. 24,268 N.W. 642; Mix v. Downing, 176 Minn. 156, 222 N.W. 913; Nygard v. Minneapolis St. Ry. Co. 147 Minn. 109, 179 N.W. 642; Althoff v. Torrison, 140 Minn. 8, 167 N.W. 119. The two situations are often hard to distinguish; but if the circumstances are such that, despite the wording of the release, the *Page 389 parties cannot be said to have contracted with reference to unknown injuries, and a material, unknown injury subsequently develops, mutual mistake exists and parol evidence may be introduced to show it. The same result in general has been reached by the great majority of courts elsewhere. 13 Minn. L.Rev. 392, 393; see extensive annotation in 48 A.L.R. 1462, especially at 1467; McIsaac v. McMurray, 77 N.H. 466,93 A. 115, L.R.A. 1916B, 769; Simpson v. Omaha C. B. St. Ry. Co.107 Neb. 779, 186 N.W. 1001. Plaintiff suffered a serious brain injury unknown to either party at the time of the release. The consideration was fixed on the basis of the known injuries. We have examined the evidence and are of the opinion that there was enough to go to the jury on the question of mutual mistake.
The order appealed from is affirmed.