concluding that when the consequences of an injury are newly discovered after the release is signed, the release may be set aside
How later courts described this case
- concluding that when the consequences of an injury are newly discovered after the release is signed, the release may be set aside
Written by the judges who cited it.
The opinion
WOLLMAN, Justice
(dissenting).
I do not believe that we can reach the question of the validity of the 1969 release, given the procedural posture of this case. Claimant at no time has attempted to attack the validity of the release. There is nothing in his petition, his proposed findings of fact and conclusions of law, his assignment of errors, his brief
*318 or his oral argument before this court that in any way indicates that claimant seeks relief from the 1969 release. Indeed, claimant himself acknowledges that he has not challenged the validity of the 1969 release with respect to the January 15, 1969 injury. Brief for claimant at 5. My notes taken at oral argument indicate that claimant’s counsel stated during his rebuttal argument that the release is irrelevant under claimant’s theory of recovery. Small wonder then that Federated Mutual filed a brief stating that because no issue had been raised as to liability on its part and because no record had been made on appeal that would justify or make possible a responsive brief on its part, it was not an interested party to this appeal.
Issues may not be presented for the first time on appeal, In Re Estate of Grimes, 87 S.D. 187 , 204 N.W.2d 812 ; Chipperfield v. Woessner, 84 S.D. 13 , 166 N.W.2d 727 ; Fales v. Kaupp, 83 S.D. 487 , 161 N.W.2d 855 ; cf. Kraft v. Kolberg Mfg. Co., 88 S.D. 140 , 215 N.W.2d 844 . A fortiori, issues presented neither to the lower court nor to this court should not be decided on our own motion.
As 1 understand it, claimant’s theory of recovery is that he is suffering from a diseased back as a result of the 1969 injury and that this disease first manifested itself during the period in which John Deere Insurance Company provided coverage, with the result that John Deere Insurance Company should be held liable for workmen’s compensation benefits. Given the record made by claimant, I would affirm the circuit court’s decision that affirmed the deputy commissioner’s conclusion that claimant had failed to sustain his burden of proof that his present disability and condition is a disease resulting from injury in accordance with SDCL 62-1-1(2). Had claimant proceeded on the theory that he had suffered an injury by accident during the period subsequent to July 1, 1971, the date John Deere Insurance Company’s coverage became effective, I would have been inclined to take a close look at our holding in Tegels v. Western Chevrolet Co., 81 S.D. 592 , 139 N.W.2d 281 , and perhaps adopt the more liberal rule espoused by the dissenting opinion in that case. I note that the Legislature has deleted the words “by accident” from SDCL 62-1-1(2). Ch. 322, § 1 Láws of 1975.
On the record before us, I would affirm.