Kirchgestner v. Denver & Rio Grande

WOLFE, Justice. The appellant's petition for rehearing is granted to allow us to consider on its merits the question of whether
the lower court erred in refusing to instruct the jury that in order to avoid the release executed by the plaintiff, he must
prove a mutual mistake of fact by clear and unequivocal evidence. As stated in our opinion, the appellant requested the court
to instruct the jury that the plaintiff must prove mutual mistake by 'clear and unequivocal evidence', but the court refused
the request and instead instructed that proof of a mutual mistake need appear only by a 'preponderance of the evidence.' We
held that because the appellant had not taken an exception to the instruction given by the court, we could not review that
instruction on its merits. However, in the appellant's brief in support of its petition for rehearing, it is called to our
attention that the appellant did take an exception to the refusal of the trial court to give the requested instruction. We
think that excepting to the refusal to give the requested instruction by the appellant was tantamount to excepting to the
instruction given by the lower court and that the appellant by its exception to the court's refusal to give its requested
instruction, gave the trial court an opportunity to rectify its refusal had it so desired. In actions arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., in which a general release
executed by the plaintiff is relied upon by the defendant as a bar to the former's action, whether the evidence of an alleged
mutual mistake of fact which will justify the jury in setting aside the release must appear by 'clear and unequivocal' evidence
or 'clear, unequivocal and convincing' evidence or only by a 'mere' or 'fair' preponderance of the evidence, is not entirely
free from doubt. However, the case of Callen v. Pennsylvania Railway Co., 3 Cir., 162 F.2d 832, 835, sheds considerable light
on the question. In that case an action was brought by a railroad brakeman to recover for injuries sustained by him in the
course of his employment. When a release executed by the brakeman was relied upon by the railroad as a bar to his action,
he contended that it was entered into under a mutual mistake of fact. The trial Judge failed to instruct the jury that clear
and convincing evidence of a mistake of a material fact was needed in order to set the release aside. The Circuit Court of
Appeals for the third circuit held that the law required such standard of proof, citing Chicago & N. W. Ry. Co. v. Wilcox,
8 Cir., 116 F. 913, 914, and Restatement of Contracts, Secs. 502, 511. Because of that omission and other errors by the trial
court the case was remanded for a new trial. Upon certiorari to the Supreme Court of the United States, 332 U.S. 625, 68 S.Ct.
296, 92 L. Ed. 242, the judgment of the Circuit Court of Appeals reversing the case for a new trial was affirmed, without
comment by the Supreme Court as to the propriety of requiring the jury to find mutual mistake by 'clear and convincing' evidence.
However, four Justices Dissented, being of the opinion that releases under the F. E. L. A. should be governed by the same
rule which applies to seamen in admiralty cases, viz., that the party relying on the release as a bar has the burden of establishing
that it was entered into fairly and without fraud or mistake.