Novak v. CJ Grossenburg and Son

I agree with Justice Wollman that we should affirm. The validity of the release was not raised by the pleading; no evidence was produced to support such a claim and it was neither briefed nor argued. On page 5 of the appellant’s brief this statement appears: “The claimant has not challenged the validity of this release * *

It may be that in the future, with the words “by accident” removed from SDCL 62-1-1(2), that the claimant would have a valid claim. Further, as Justice Wollman’s dissent points out, to sustain claimant’s theory in this case would require this court to give retroactive effect…