¶1{dissenting). I cannot agree with the majority decision in this case.
¶2The majority opinion quotes Justice Black from Hall v. Strom Construction Company (1962), 368 Mich 253, 258:
“To make the rule pinpoint plain, we construe it as applicable where the releasor’s proof persuasively shows a fair and mutual want of knowledge of a hidden injury which eventually comes to consequential light, distinguished from a then want of knowledge of unexpected adverse consequences of a known yet apparently negligible injury. … The rule … applies.” (Emphasis supplied.)
¶3In the present case it is undisputed that there was a mutual mistake. The release was signed in the adjuster’s automobile in a hospital parking lot (plaintiff’s wife being in a hospital recovering from an operation) during the adjuster’s second discussion with the plaintiff. The plaintiff had been authorized by his physician to return to work because he had recovered from the injuries to his elbows. Plaintiff stated in his deposition:
“I would say that I knew that when I signed that release, I would say because I didn’t anticipate no other injuries, I mean, if I would have known I would have never signed it.”
¶4The adjuster stated in his deposition:
“A. As far as I recall he indicated his injuries were confined to what we already knew, which was injuries to both elbows. …
*97“Q. So your settlement in this case was based on injury to his elbows ?
“A. That is correct.”
¶5Neither party knew of the head injuries involved in the present case.
¶6It is my understanding that Michigan has adopted the general rule that a release will be set aside on the ground of mutual mistake. In the Hall Case, supra, the Court did discuss several reasons for its ruling, but the Court did not say that these reasons were restrictions or limitations on the general rule.
¶7It would be possible to make several similar comparisons between the Hall Case and the present case. However, in my opinion the Supreme Court meant exactly what it said in the Hall Case, and in the present case it is “pinpoint clear” that when the plaintiff signed the release there was a fair and mutual want of knowledge of the head injuries which eventually came to light, as distinguished from a want of knowledge of an unexpected adverse consequence of a known yet apparently negligible injury.
¶8I would reverse.