Opinion
Kripke, Carrigan & Dufty, P. C. Douglas E. Bragg, Denver, for plaintiff-appellee.
Knowles, Hopper & Molen, Clayton D. Knowles, Denver, for defendant-appellant.
COYTE, Judge.
Plaintiff was involved in a train-auto collision. Shortly after the accident she contacted the claims department of the Burlington Railroad where a statement relative to the happening of the accident was taken. Shortly thereafter she was advised that the Union Pacific Railroad was the owner of the train involved. She called the claims department and was advised to get estimates on her car and to see a doctor, which she did two days after the accident. The doctor, an internist, told her that her knees were slightly skinned but would be all right. Five days after the accident she went to see a claims agent in the Union Pacific claims office. At that time he had an earlier statement given by plaintiff, and he took another statement from her in which she described her injuries in the following manner:
'I fell to the pavement and I skinned both knees, and was shaken up and nervous from the accident. I saw Dr. Joseph Tyor at the Cherry Creek Drive, on Colorado Blvd. on Wednesday, February 5th, and the doctor gave me a good examination, but did not take any x-rays, and nor did he give me any medication to take. My knees were skinned up, and they seemed to be healing properly. The call was at his office and I would judge this office call will cost around $10.00. I also ruined my nylon hose which cost me $1.19. This is all the expense I have had other than I was off work three days, and I earn $12.70 per day a total of $38.10.'
The expenses came to approximately $245. She agreed to accept $300 and signed a release which provided in part as follows:
'. . . any and all claims and liability of every kind or nature including claims for injuries, if any, which are unknown to me at the present time.'
At the bottom of the release in her handwriting was the following:
'I have read the above and understand it is a full release of all my claims.'
Approximately three weeks later her knees began to swell. Thirty-three days after signing the release she saw an orthopedic surgeon and was later required to undergo surgery.
Plaintiff filed suit against defendant in May of 1970 for damages she claimed to have received in the auto-train collision. Defendant filed an answer which included, as an affirmative defense, that plaintiff's claim for damages was compromised and settled between the parties on February 8, 1969, and that plaintiff had released all of her claims against defendant. Plaintiff filed a reply wherein she alleged that the release was signed under a mutual mistake of fact. After trial to a jury, a verdict was returned in favor of plaintiff in the amount of $9,000.
Defendant has appealed, alleging two grounds for error: (1) that the compromise settlement and the release executed by plaintiff was a valid and binding release and that there was no basis in the evidence to set it aside; and (2) that the damages awarded by the jury are excessive as a matter of law. We disagree with defendant's contentions and affirm the verdict of the jury.
This case was submitted to the jury under proper instructions. At the time the settlement and release were negotiated with the Union Pacific Railroad Co., both plaintiff and defendant were under the misapprehension that plaintiff's only injury was skinned knees. Neither of the parties had knowledge of the fact that plaintiff had cartilage damage and a chipped bone which required surgical removal.
McCarthy v. Eddings, 109 Colo. 526, 127 P.2d 883, states:
"A release or a contract not to sue which has been obtained . . . as the result of a mutual basic mistake may be set aside as ineffective, and in actions of tort a release or a contract not to sue thus obtained is not a defense to the action.' Restatement of the Law--Torts, p. 531, c. 46, s 900. The issue involving mutual mistake was properly submitted to the jury, and they resolved the same in favor of plaintiff. No prejudicial error resulted. The retention by plaintiff of the $150 which was paid as consideration for the release, and its deduction by the jury from the amount of damages awarded was proper. Colorado City v. Liafe, 28 Colo. 468, 65 P. 630; Roberts v. Colorado Springs & I.R. Co., 45 Colo. 188, 101 P. 59; Yelloway v. Garretson, 89 Colo. 375, 3 P.2d 292.'
The issue as to whether there was a mutual mistake involved a factual determination. This issue was submitted to the jury which determined that there had been a mutual mistake. Under instructions in no way challenged, this verdict of the jury, based on conflicting evidence and approved by the trial court, will not be disturbed on review. Rosenthal v. Citizens State Bank, 129 Colo. 35, 266 P.2d 767.
Defendant relies heavily upon the case of Davis v. Flatiron Materials Co., 30 Colo.App. 237, 494 P.2d 607, wherein it was determined that there was no mutual mistake. The issue was tried to the court which found specifically that there was no mutual mistake. We determined that the finding by the trial court, as the trier of fact, that there was not sufficient evidence to support a mutual mistake was binding upon us. Likewise the finding of fact by the jury as the trier of fact in the present case is also binding on us.
The verdict of the jury was for $9,000. Plaintiff's doctor initially found plaintiff to have a grating in both knees and a chip fracture in the left knee. He eventually surgically removed the bone splinter. He testified that she had cartilage damage and permanent injury to the knee and that her knee problem was caused by the collision of February 3, 1969. She lost 18 to 20 days of work and incurred approximately $428 in doctor and hospital expense. Quoting from Riss & Co. v. Anderson, 108 Colo. 78, 114 P.2d 278, the court set forth the applicable principle in Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185:
"The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike everyone with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say that, in the opinion of the court, the damages are too high, and that we would have given must less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries."
Judgment affirmed.
DWYER and ENOCH, JJ., concur.