(dissenting) :
I am unable to agree with the majority’s assertion that respondent Gecy intended to relinquish all unknown, future claims resulting from the accident; therefore, I respectfully dissent. However, I would reverse and remand the case to the trial court for a disposition on the merits.
The majority’s conclusion that “the parties intended that all claims for injuries would be relinquished” is supported only by the terms of the release. The record contains convincing evidence that Ms. Gecy did not intend to release a claim for the herniated disc, the existence of which was completely unknown at the time the release was executed. The settlement was for an amount grossly inadequate for the injuries actually sustained, albeit unknown at the time of negotiation and execution.
In Herndon v. Wright, 257 S. C. 98, 184 S. E. (2d) 444 (1971), this Court recognized a cause of action for rescission of a release based on mutual mistake. I would carry the reasoning of Herndon one logical step further and hold that the mutual mistake of Ms. Gecy and Prudential concerning the gravity of her injuries may, upon a trial, entitle her to rescission. As stated in Ranta v. Rake, 421 P. (2d) 747, 751 (Idaho 1967) :
“The majority and the more modern view, while recognizing the policy of encouraging out-of-court settlements of personal injury claims, permits a releasor to avoid a release where unknown injuries existed at the time the release was executed though the release invariably is broad enough to encompass unforseen injuries and though the release was honestly obtained without fraud, overreaching or undue influence on the part of the releasee.”
See also 71 A. L. R. (2d) 82.
*444The persuasive rationale behind permitting rescission in proper personal injury releases was recognized in Clancy v. Pacenti, 145 N. E. (2d) 802, 805 (Ill. App. 1957) :
“In such cases it is not an article of commerce that is involved, but the human mind and body, still the most complicated and mysterious of all the things that are upon or inhabit the earth. Here, mistakes are easily made and the consequences are more serious than in any other of the affairs of man.”
Nevertheless, a release should not be interpreted loosely. The language should constitute a significant though not controlling circumstance in determining the parties’ intentions; another important consideration is the party who drafted the document. The burden of proof on the issue is upon the one seeking to avoid the sweeping language of the release, to establish by clear and convincing evidence “that he did not know and could not know of the later revealed injuries, and that different injuries are involved rather than unanticipated consequences of known injuries.” Mangini v. McClurg, 249 N. E. (2d) 386, 393 (N. Y. 1969).
I do not propose to open the proverbial floodgates to recurrent challenges in court of releases honestly negotiated. Rather, I would provide equitable relief in the relatively small number of cases where it is unjust to hold a release to bar a later action because the injuries proved to be more severe than could reasonably have been foreseen at the time of execution.
This was not a proper case for the granting of summary judgment. Genuine issues of material fact exist regarding the parties’ intentions at the time of signing the release. Whether the parties truly intended a release to cover unknown injuries is a question of fact not resolved mechanically by the literal language of the formal release.
The majority declines to look beyond the wording of the release on the basis that Ms. Gecy neither alleged in her com*445plaint nor offered evidence to establish that the release was not intended to cover unknown injuries. Ms. Gecy’s complaint alleges that the release should be rescinded because at the time of its- execution, both parties were unaware of the severity of her injuries. I would construe that allegation broadly to include a request for the court to look beyond the mere wording of the release to ascertain the parties’ intententions at the time of its execution.
I would remand to the trial court for disposition on the merits.