Kirchgestner v. Denver & Rio Grande

WOLFE, Chief Justice. The appellant's petition for rehearing was granted in this case to allow us to consider on its merits the question whether the trial court erred in denying the appellant's request that the jury be instructed that in order to avoid the release executed by the respondent, he must prove a mutual mistake of fact by 'clear and unequivocal' evidence. Instead, the court charged the jury that a mutual mistake of fact need only be proved by a 'preponderance of the evidence.' For the facts of the case, see our original opinion, Utah, 218 P.2d 685. Upon the authorities cited in our opinion granting the petition for rehearing, Utah, 225 P.2d 754, we conclude that the lower court erred in the particular above mentioned and that such error necessitates a reversal of the case for a new trial. It would serve no useful purpose to further discuss those authorities here.