dissenting.
I must respectfully dissent from the position taken by the majority in this case. A compromise and release of claims is entered into by the parties in the interest of compensating the injured party while avoiding the costly and time consuming process of litigation. The rationale posited by the majority would render releases worthless as a method for attaining those goals. A person should not be allowed to set aside a release or force the released party to go to the expense of a trial, merely by claiming the release was entered into by mistake. The Appellate Court of Illinois has addressed this issue by noting that:
“It has always been the policy of the [common] law to favor compromise and settlement, and it is especially important to sustain that principle in this age of voluminous litigation, particularly in traffic cases.... If a release, completely effective in the form in which it is executed, is to be lightly disregarded, then the peaceful settlement of claims out of court becomes practically impossible.” Thomas v. Hollowell (1959) 20 Ill.App.2d 288, at 290, 155 N.E.2d 827, at 829.
It is established by Indiana case law that a release is voidable when based on a mutual mistake. The majority would have us believe that there is a factual question as to the existence of such a mistake in this case. However, Indiana cases hold otherwise.
The leading case in Indiana establishing that a mutual mistake renders a release voidable is Crane Company v. Newman (1941) 111 Ind.App. 273, 37 N.E.2d 732. However, Crane was decided on a much narrower fact situation than that present in the case at bar.
In Crane the plaintiff was injured on the defendant’s premises. The defendant requested that the plaintiff be examined by a doctor who informed both parties that plaintiff’s injuries were minor. A general release was signed which plaintiff subsequently attempted to have set aside when it was discovered he suffered a broken back. The court held that the release was voidable because it was based on a mutual mistake as both parties had been misinformed by the doctor.
In the case at bar there was no representation to the appellant about Mygrant’s injuries. Mygrant made no attempt to be examined by a doctor. In fact Mygrant’s situation more nearly parallels the facts of Gumberts v. Greenberg (1953), 124 Ind.App. 138, 115 N.E.2d 504.
In Gumberts, the plaintiff, who was a tenant of the defendant, was injured on his premises. She was treated for a broken arm. While the arm was healing she signed a general release in return for payment of her medical bills. It was subsequently discovered that her arm had not healed properly. Presented with additional medical expenses the plaintiff attempted to have the release set aside. The Court upheld the release. Since no representations had been made to defendant about the condition of plaintiff’s arm, the only party mistaken was the plaintiff.
In fact the same arguments raised by Mygrant were raised in an earlier Indiana case. Hoeger v. Citizens St. R. Co. (1905), 36 Ind.App. 662, 76 N.E. 328. In Hoeger the plaintiff’s wagon was damaged and his horse and family were injured when struck by the defendant’s streetcar. The plaintiff negotiated a compromise and signed a general release. Upon realizing that the money was insufficient to provide care for his *489seriously injured son, Hoeger attempted to have the release set aside. Hoeger, like Mygrant in this case, claimed the release was meant to pertain only to the property damage claim. The Court upheld the release stating that Hoeger could have read the release and refused to sign it until a settlement to his liking was negotiated. Having failed to do this he was therefore bound by his actions since he was the only party mistaken as to the significance of the release.
Like Hoeger, Mygrant claims the release at issue was meant to apply only to the property damage claim. The only evidence forwarded by Mygrant, other than his testimony, is an unsworn statement purported to have been made by Terry Feightner, an adjuster for the appellant’s insurer. In this statement Feightner clearly states that the release was intended to be a “full and final settlement of the bodily injury and property damage claim.” (Emphasis added.) Record at 86. This statement hardly provides support for Mygrant’s contention.
One final point addressed to the majority’s mention of the rationale in Wecker v. Kilmer (1973), 260 Ind. 198, 294 N.E.2d 132. While discussing Wecker as support for the rationale in this case, the majority fails to note that the reasoning of Wecker has been applied to reach the opposite result in more factually analogous situations. Rose v. Rose (1979), Ind.App., 385 N.E.2d 458; Lazarrus v. Employers Mut. Cas. Co. (1977), 173 Ind.App. 452, 364 N.E.2d 140.
In Lazarrus, Judge Garrard, writing for the majority, upheld a trial court’s grant of summary judgment applying the Wecker rationale. The defendant in Lazarrus insured plaintiff’s truck which was damaged in a fire. Upon payment for the damages plaintiff signed a release of the defendant. Delays in repair of the truck cost plaintiff additional expense which he attempted to recover from defendant. The defendant was granted a summary judgment upholding the release as an affirmative defense to plaintiff’s claims. Judge Garrard concluded that unlike Wecker there was no question as to whom the release was intended to apply.
Similarly in this case there is no question as to whom the release was intended to apply. Mygrant, with the benefit of counsel, signed a general release of the appellant Indiana Bell Telephone. Likewise, there is no question as to what claims the release was intended to apply. The only evidence forwarded by Mygrant in support of his claim is an unsworn statement which supports appellant’s argument. As in Gum-berts and Hoeger there is no mutual mistake. There were no representations of Mygrant’s condition made to appellant.
Since there was no factual question before the trial court regarding the release, the court should have granted the summary judgment. I would reverse the decision of the trial court.