reached the conclusion that the plaintiff had sustained only minor injuries. Later it was ascertained that the plaintiff had a ruptured disc as a result of the accident involved in the litigation. In that case the release was set aside. The case is, however, clearly distinguishable on the ground that there was a mutual mistake, because the defendant secured his own information through his own physician, and both made the same mistake, if it was a mistake. In the course of its opinion the , court referred to the sharp economic inequality of the bargaining parties. Such a situation, of course, does not exist here. We are not dealing with a poor or ignorant claimant, because the plaintiff, as heretofore stated, is a member of the bar of high standing.
It must be noted that the decisions of the Appellate Court of Illinois, which sits in separate divisions, are far from being at unison, for in Thomas v. Hollowell, 20 Ill.App.2d 288, 155 N.E.2d 827, 829, it reached an opposite result and enunciated the following principle:
'It has always been the policy of the 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. It must be remembered that the question of liability, besides the extent of the injuries, may well be in the minds of the parties. 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. How many prospective litigants negotiate a settlement if the law will not give effect to their signed adjustment, with consideration paid? This is a problem which would confront lawyers every day in this state.'
A similar conclusion was reached by the Supreme Court of Oregon in Wheeler v. White Rock Bottling Company of Oregon, 229 Or. 360, 366 P.2d 527, in which the plaintiff thought that he had sustained a minor back injury but later the existence of a ruptured disc was discovered. A like conclusion was arrived at in Gumberts v. Greenberg by the Appellate Court of Indiana, 124 Ind.App. 138, 115 N.E.2d 504. The Court there pointed out, as is the situation here, that the mistake was unilateral and not mutual, since the plaintiff thought that his injury was healed and the defendant knew nothing of it, but relied upon the plaintiff's statement, and later further injuries developed.
Many of the cases cited by the learned counsel for the plaintiff are distinguishable. Thus in Great Northern Railway Co. v. Reid, 9 Cir., 245 F. 86, the plaintiff was examined solely by the defendant's physician, who diagnosed the plaintiff's injuries as minor. Later a serious injury developed. The Court naturally held that the release should be set aside.
In Graham v. Atchison, Topeka & Santa Fe Railway Co., 9 Cir., 176 F.2d 819, the employer's physician examined the plaintiff, who was a railroad employee, urged him to return to work and stated that he would be well in 30 to 60 days. X-ray photographs were taken of the plaintiff, which revealed a crushed disc, but plaintiff was not informed of the fact and was refused access to the X-ray films. Obviously the mistake, if any, was on the part of the defendant. It was almost akin to fraud.
So, too, in Chicago & Northwestern Railway Co. v. Curl, 8 Cir., 178 F.2d 497, it was the employer's physician who diagnosed the plaintiff's injury as minor and, therefore, it can be said that the employer induced the mistake. The same situation existed in Southwest Pump & Machinery Co. v. Jones, 8 Cir., 87 F.2d 879, and in Koshka v. Missouri Pacific Railway Co., 114 Kan. 126, 217 P. 293.
There are some authorities that support the plaintiff's contention, but if we eliminate those cases that are distinguishable on their facts, those that sustain the plaintiff's position are in a minority.
The Court reaches the conclusion that there has been no mutual mistake and that the plaintiff is not entitled to secure a cancellation of the settlement and of the release.
A transcript of this decision will constitute the findings of fact and conclusions of law.
The Court will grant judgment dismissing the complaint on the merits on the basis of the affirmative defense of settlement and release.
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