Smith v. Loos , 78 N.M. 339 ( 1967 )

HENSLEY, Jr.

(dissenting).

At the close of the plaintiff’s case the trial court in the presence of the jury announced that it would entertain a motion for a directed verdict. The defendant’s motion for a directed verdict was then made and sustained over the objection of the plaintiff. The majority opinion summarily approves the directed verdict and accurately quotes from Jones v. New Mexico School of Mines, 75 N.M. 326, 404 P.2d 289. The majority cite Larson v. Sventek, Aronovitch v. Levy, Doyle v. Teasdale, Denton v. Utley, and Sloan v. Standard Oil Company. Without exception these cases state that when a release is attacked for fraud or mutual mistake of fact that the intent of the parties is a question of fact. See also Williston, Contracts, Rev. ed. § 1551; 76 C.J.S. Release § 72, page 722; Ranta v. Rake, 91 Idaho 376, 421 P.2d 747 (1966). In short, the question becomes one of intent of the parties at the time of the execution of the release and the issue is to be resolved by the trier of the facts. Here the plaintiff unequivocally stated that he did not know that he had sustained a brain injury when he signed the release. The witness, Shulenburg, testified that he would not have tried to settle for $150.00 had he known of the plaintiff’s subdural hematoma. Applying the test summarized in Jones v. New Mexico School of Mines, supra, the error in directing a verdict in favor of the defendant at the close of the plaintiff’s case becomes sufficiently apparent to the writer to require this dissent.