Jaggabb, J.
Plaintiff and appellant was injured, it was for present purposes admitted, by the negligence of defendant. Defendant claimed, among other things, that plaintiff had released his claim against defendant. Plaintiff replied, alleging that the release was void because of mutual mistake, due to the mutual belief of the parties that the injury was. less serious than it actually was. • The jury returned a verdict for defendant. Plaintiff appealed from the order of the court denying his motion for a new trial.
Undoubtedly, as was pointed out by Collins, J., in Hedin v. Minneapolis M. & S. Institute, 62 Minn. 146, 64 N. W. 158, 35 L. R. A. 417, 54 Am. St. 628, “false statements and representations, to warrant an action for deceit, must be, generally speaking, as to & material fact or facts, susceptible of knowledge, and, if they appear to be mere expressions of opinion upon matters of conjecture nnd uncertainty, they are not actionable; but there are many cases .In which the false assertion of an opinion will amount to fraud.” It is equally well established that releases of claims for personal injuries, executed in reliance on fraudulent and false representations of probability of recovery, made to the injured person by an attending physician in the employ of the persons sought to be charged, are voidable. Plaintiff has referred us to many authorities of this kind.
The courts, moreover, have generally viewed releases by the physician, acting as assistant claim agent, with extreme suspicion, and in many cases in which the physician has acted in the dual capacity of claim agent and doctor, or in which he has violated the proprieties of the situation and has expressed his opinion with reference to or in connection with a settlement then pending, the courts have avoided releases on the ground of mutual mistake, where subsequent experience has shown that the physician was in fact wrong. See, for example, Lumley v. Wabash R. Co., 16 Fed. 66, 22 C. C. A. 60; Great Northern Ry. Co. v. Fowler, 136 Fed. 118, 69 C. C. A. 106; Gulf v. Huyett (Tex. Civ. App.) 108 S. W. 502; Viallett v. Consolidated, 30 Utah, 260, 84 Pac. 496, 5 L. R. A. (N. S.) 663. It does not at all follow, in every case wherein there Is a subsequent discovery of mutual mistake made by defendant’s physician as to the subsequent course of plaintiff’s injury, that a release executed after the mistake has been made is void. See, for example, Doty v. Chicago, St. P. & K. C. Ry. Co., 49 Minn. 499, 52 N. W. 135; Nelson v. Minneapolis St. Ry. Co., 61 Minn. 167, 63 N. W. 486; Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, 54 C. C. A. 14. Cf. Farwell v. Colonial Trust Co., 147 Fed. 480, 78 C. C. A. 22.
Into which class a particular case under consideration should! properly fall must depend upon its peculiar circumstances. In the instant case there is no basis for any claim of fraud, nor is it made. It is frankly admitted that the doctor gave an honest, but mistaken, opinion. The authorities as to fraud are not relevant. Nor do the authorities as to mutual mistake apply. The opinion here expressed! had, at the time it was uttered, no connection with nor reference to-a settlement, or to negotiations for settlement. It was made before-they had been commenced. That it subsequently became the basis-of the settlement is not legally significant. Before the release was-signed, plaintiff talked with his wife, sent for his son-in-law, an, assistant cashier of a bank, and advised with him, while the claim agent was excluded from the room.
The mistake related to the length of time probably required for recovery for a broken leg. It was not a misrepresentation or a misstatement relating to a past or a present existing fact. In Great-Northern Ry. Co. v. Fowler, supra, for example, there was a mistake-of fact as to the nature of the injury; here there was a question as to when plaintiff would recover from a familiar and definitely known injury. We are unable to see wherein this case differs on principle from the ordinary mutual mistake, where property is sold and is believed by both parties to be of about a certain value, and; where it subsequently appears to have been of much greater or less-value.
We conclude the trial court properly charged the jury that, “even though you find that at the time of making the release either or both of the parties were mistaken as to the time when plaintiff would recover, such a mistake wouldn’t justify you in holding the release void.”
Affirmed.