Mix v. Downing

1 Reported in 222 N.W. 913 . Plaintiff appealed from an order denying his motion for a new trial. On April 7, 1924, plaintiff stepped on a defective manhole cover set in the sidewalk in front of the premises known as 386 Minnesota street in St. Paul, and because of its defective condition known to the defendant, the owner of the building, for some time, it tilted and his leg went into the hole receiving abrasions. The edge of the cover struck plaintiff in the lower region of the vertebrae making a black and blue spot. The storeroom at this street number is leased by A. G. Spalding Bros. from defendant, who uses the manhole to receive fuel to heat his building. So far as the record shows he has the exclusive use of it. Plaintiff promptly consulted a doctor. He employed a lawyer. He was examined by two doctors of his own selection and by one representing the defendant. On June 3, 1924, a settlement was made for $177. Plaintiff was not induced to settle by any statement of defendant or his representatives. At that time all the doctors thought plaintiff's injury in the lower region of the vertebrae was in the nature of a muscular bruise. They did not X-ray the back. No one then knew that plaintiff had an injury to the vertebrae, as hereinafter stated. The settlement of the disputed claim included a release for all "damage, loss or injury, which heretofore have been or which hereafter may be sustained by me in consequence," etc. At the time of settlement plaintiff still had some pain at the seat of the discoloration. This reoccurred in a minor way until in September, 1924, when the pains became severe. For two years plaintiff then had much to do with doctors, and in the meantime a lump developed at the place of the discoloration and was opened discharging pus. An operation disclosed a piece of bone which had been broken from a branch bone extending from the side of the backbone. There was a focal infection at the place of the broken bone because the injured tissues furnished a fertile field for germs in the blood supply. When the broken bone was removed plaintiff promptly *Page 158 recovered. He had suffered much pain, lost considerable time, and had been subjected to an expense of about $1,400. He brought this action to recover damages in the sum of $28,700. The answer alleged the release, and the reply sought its avoidance on the ground of mutual mistake. Upon the theory that the evidence failed to disclose facts sufficient to support an avoidance of the release, the trial court directed a verdict for defendant. 1. Where a landlord makes no agreement to repair the obvious unsafe condition of the leased premises he is not liable, in the absence of fraud or concealment, to the tenant or to persons entering upon the premises at the tenant's invitation for injuries sustained by reason of such unsafe condition. Harpel v. Fall, 63 Minn. 520 , 65 N.W. 913 ; Tvedt v. Wheeler, 70 Minn. 161 , 72 N.W. 1062 ; Kayser v. Lindell, 73 Minn. 123 , 75 N.W. 1038 ; Barron v. Liedloff, 95 Minn. 474 , 104 N.W. 289 ; Farley v. Byers, 106 Minn. 260 , 118 N.W. 1023 , 130 A.S.R. 613 ; Ames v. Brandvold, 119 Minn. 521 , 138 N.W. 786 ; Daley v. Towne, 127 Minn. 231 , 149 N.W. 368 ; Keegan v. G. Heileman Brg. Co. 129 Minn. 496 , 152 N.W. 877 , L.R.A. 1916F, 1149 ; Martinson v. Neubert, 150 Minn. 263 , 185 N.W. 651 ; Nickelsen v. M. N. S. Ry. 168 Minn. 118 , 209 N.W. 646 . This rule has some limitations. Ames v. Brandvold, 119 Minn. 521 , 138 N.W. 786 . But one who negligently creates a danger to a traveler on a public street may be liable for consequences regardless of whether or not he owns or occupies the abutting property. Williams v. John A. Stees Co. Inc. 172 Minn. 35 , 214 N.W. 671 . Unfortunately the record in this case does not show the terms of the lease between the defendant and the tenant — especially in reference to the possession, care and maintenance of the sidewalk, of which the manhole was a part. Since defendant owned the sidewalk which was used by the public and used the manhole to put in fuel, the necessary inference is that he retained possession. Farley v. Byers, 106 Minn. 260 , 118 N.W. 1023 , 130 A.S.R. 613 . The question is answered by a mere statement of the fact that the evidence does not show that the lease included the place of the accident City of Wabasha v. Southworth, 54 Minn. 79 , 55 N.W. 818 . If not, *Page 159 it rests with the owner. 36 C.J. 212, § 887; Id. 244, § 956. The record does not bring this case within the rule of the cases cited. 2. Was the settlement a bar to a recovery in this action? Contracts of this character — releases — and their avoidance have been before this court on several occasions. When such release results from the fraud of the opposite party it may be avoided. Peterson v. C. M. St. P. Ry. Co. 36 Minn. 399 , 31 N.W. 515 ; Id. 38 Minn. 511 , 39 N.W. 485 ; Christianson v. C. St. P. M. O. Ry. Co. 61 Minn. 249 , 63 N.W. 639 ; Id. 67 Minn. 94 , 69 N.W. 640 ; Morris v. G. N. Ry. Co. 67 Minn. 74 , 69 N.W. 628 ; Schus v. Powers-Simpson Co. 85 Minn. 447 , 89 N.W. 68 , 69 L.R.A. 887 ; Merrill v. Pike, 94 Minn. 186 , 102 N.W. 393 ; Erickson v. Northwest Paper Co. 95 Minn. 356 , 104 N.W. 291 ; Peterson v. C. G. W. Ry. Co. 106 Minn. 245 , 118 N.W. 1016 ; Gibson v. Nelson, 111 Minn. 183 , 126 N.W. 731 , 31 L.R.A.(N.S.) 523 , 137 A.S.R. 549 ; Nelson v. C. N.W. Ry. Co. 111 Minn. 193 , 126 N.W. 902 , 20 Ann. Cas. 748 ; Marple v. M. St. L. R. Co. 115 Minn. 262 , 132 N.W. 333 , Ann. Cas. 1912d 1082; Winter v. G. N. Ry. Co. 118 Minn. 487 , 136 N.W. 1089 ; Jacobson v. C. M. St. P. Ry. Co. 132 Minn. 181 , 156 N.W. 251 , L.R.A. 1916D, 44 , Ann. Cas. 1918A, 355; Vineseck v. G. N. Ry. Co. 136 Minn. 96 , 161 N.W. 494 , 2 A.L.R. 530 ; Althoff v. Torrison, 140 Minn. 8 , 167 N.W. 119 ; Oestreich v. C. St. P. M. O. Ry. Co. 140 Minn. 280 , 167 N.W. 1032 ; Helvetia Copper Co. v. Hart-Parr Co. 142 Minn. 74 , 171 N.W. 272 ; 5 Dunnell, Minn. Dig. (2 ed.) § 8374; Becker v. Messner, 175 Minn. 471 , 221 N.W. 724 . The defrauded party may ratify the release transaction induced by fraud. Valley v. Crookston Lbr. Co. 128 Minn. 387 , 151 N.W. 137 . Mere inadequacy of amount paid is not a badge of fraud. Carlson v. Elwell, 128 Minn. 440 , 151 N.W. 188 . It is not a matter of intentional fraud. If the representation is made to induce the settlement and it is not true, there is fraud in law sufficient to overcome the release though the one who speaks may not intend to deceive or mislead his adversary. Jacobson v. C. M. St. P. Ry. Co. 132 Minn. 181 , 156 N.W. 251 , L.R.A. 1916D, 44 , Ann. Cas. 1918A, 355; Vineseck v. G. N. Ry. Co. 136 Minn. 96 , *Page 160 161 N.W. 494 , 2 A.L.R. 530 ; Helvetia Copper Co. v. Hart-Parr Co. 137 Minn. 321 , 163 N.W. 665 ; Smith v. G. N. Ry. Co. 139 Minn. 343 , 166 N.W. 350 ; Althoff v. Torrison, 140 Minn. 8 , 167 N.W. 119 ; Enger v. G. N. Ry. Co. 141 Minn. 86 , 169 N.W. 474 ; Neelund v. Hansen, 144 Minn. 228 , 175 N.W. 538 ; Kjerkerud v. M. St. P. S. S. M. Ry. Co. 148 Minn. 325 , 181 N.W. 843 . In such cases a false assertion by a surgeon of an opinion as to the extent or nature of an injury may amount to fraud. Oestreich v. C. St. P. M. O. Ry. Co. 140 Minn. 280 , 167 N.W. 1032 . Equity will not permit one knowingly and unconscionably to take advantage of another's mistake. Such conduct sounds in fraud. In such cases a unilateral mistake by one party and knowledge of that mistake by the other party who takes advantage of it will be sufficient to avoid the release. Nadeau v. Maryland Cas. Co. 170 Minn. 326 , 212 N.W. 595 . A release may also be avoided when its execution results from a mutual mistake of the parties negotiating it. Nelson v. C. N.W. Ry. Co. 111 Minn. 193 , 126 N.W. 902 , 20 Ann. Cas. 748 ; Nygard v. Minneapolis St. Ry. Co. 147 Minn. 109 , 179 N.W. 642 ; Bingham v. C. M. St. P. Ry. Co. 148 Minn. 316 , 181 N.W. 845 ; Richardson v. C. M. St. P. Ry. Co. 157 Minn. 474 , 196 N.W. 643 . Where the settlement is made and the release is given with reference only to known injuries and it subsequently develops that a substantial injury then existed which was unknown to the parties and not taken into consideration, the release may be avoided on the ground of mutual mistake. Such was the holding in the Richardson case, 157 Minn. 474 , 196 N.W. 643 , where it was also definitely held that a release cannot be set aside on the ground that known injuries resulted in unanticipated consequences. In this case it seems that it was unknown that plaintiff was suffering from a broken bone of a branch of the vertebrae at the time of the settlement. There is sufficient evidence in the record to sustain a finding that he was and that it was the result of being struck by the manhole cover. The parties knew that plaintiff was suffering an injury, towit, a muscular bruise; but if there was then *Page 161 a broken bone as claimed, which the evidence tends to prove, the jury could also find that the parties did not know it. The subsequent development of the alleged unknown injury is very persuasive that the unknown injury, if any, was a substantial one and not contemplated by the contracting parties. Equity aims to afford relief to parties who have bound themselves by a written contract executed in justifiable ignorance of a past or existing fact which is so material to the subject matter that if it had been known the contract would not have been made. We are of the opinion and hold that the evidence was sufficient to take the case to the jury to determine whether there was a mutual mistake sufficient to avoid the release. Reversed.