Albright v. RJ Reynolds Tobacco Company

• Decision Date: 23 October 1972
• Docket Number: Civ. A. No. 65-1155.
• Citation: 350 F. Supp. 341
• Parties: Mary ALBRIGHT, Administratrix of the Estate of Charles Albright, Deceased, Plaintiff, v. R. J. REYNOLDS TOBACCO COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

350 F. Supp. 341

Mary ALBRIGHT, Administratrix of the Estate of Charles Albright, Deceased, Plaintiff, v. R. J. REYNOLDS TOBACCO COMPANY, a corporation, Defendant.

Civ. A. No. 65-1155.

United States District Court, W. D. Pennsylvania.

October 23, 1972.

COPYRIGHT MATERIAL OMITTED

Kenneth W. Behrend and Mark B. Aronson, Pittsburgh, Pa., for plaintiff.

Harold R. Schmidt and Raymond G. Hasley, Pittsburgh, Pa., Edwin J. Jacobs, Alfred E. Schretter, New York City, for defendant.

OPINION

WEBER, District Judge.

I

Defendant has moved for Summary Judgment on the grounds that Plaintiff has secured prior satisfaction for the same injury claimed here.

On July 5, 1962, Plaintiff's decedent brought suit against the City of Pittsburgh for injuries received when his automobile struck a street excavation. The complaint alleged contusions and blows to the chest, contusions to the abdomen, shock, sprain of the left wrist, traumatic neurosis, pain, suffering and medical expenses. On August 6, 1962 the Defendant served interrogatories to determine the extent of the injuries and damages claimed. These answers were not filed until July 10, 1964. It is necessary for the purpose of this motion that we set forth certain of those Interrogatories and their Answers in full.

"Interrogatory Number 15. "State the exact name and address of each hospital or institution at which you received treatment on account of the injuries complained of in your complaint; and with respect to each, state:

(a) the nature of the treatment received,

(b) the date or dates on or between which you were confined, . . ."

Answer: "Plaintiff was treated for cancer which may have been caused or exacerbated by the said accident at Montefiore Hospital.

15(a). Plaintiff had the upper lobe of his lung removed, and attendant treatment performed at Montefiore Hospital, Pittsburgh, Pennsyvania.

(b) Said treatment was rendered from November 29, 1963 to December 28, 1963."

Interrogatory Number 17. "What are the amounts of the bills of each of those persons listed in answer to Interrogatory 13 for the services they rendered in connection with the injuries mentioned?"

Answer: "Montefiore Hospital— $1,429.50 to date . . .".

Interrogatory Number 23. "State whether or not any of the alleged injuries resulted in any scars, abrasions, contusions or lacerations to your body. If so, describe and specify the parts of your body."

Answer: "Plaintiff suffered contusions and blows of the chest, contusions of the abdomen, and severe shock, sprain of the left wrist and possible traumatic neurosis and possible internal injuries including possible exacerbation or causation of a cancerous growth in the lungs."

Interrogatory Number 24: "State specifically the nature and duration of the pain, suffering and inconvenience which you allegedly underwent and which you will continue to undergo as stated in your complaint in trespass."

Answer: "Plaintiff suffers a continuous pain in the chest which continues to prevail to the present time. . . .".

Interrogatory Number 26: "State the degree of any disability to any part or parts of your body which you claim resulted from the alleged accident. State whether such disability is claimed to be temporary or permanent in each case."

Answer: "Loss of part of the lungs, inability to sleep well and shortness of breath may be permanent results of the accident."

Interrogatory Number 33. "Subsequent to the accident alleged in the complaint, were you disabled partially or totally from any other cause? . . .".

Answer "Plaintiff believes not."

The plaintiff in the above-cited action died on November 13, 1965, and his widow, the plaintiff in the present action, was substituted as plaintiff in his stead.

After Pretrial Conferences looking toward conciliation in the Common Pleas Court, the above action was settled and plaintiff's counsel (the same counsel as represents the plaintiff in the within action) marked the docket "Settled and Discontinued" on December 22, 1967. The consideration of $850 was paid the plaintiff for the settlement.

During his lifetime, and while the above-cited Common Pleas action was pending, Charles Albright commenced the present action against the defendant R. J. Reynolds Tobacco Company alleging that the cancer of the lung which he developed was caused by smoking Camel cigarettes made by the defendant. Charles Albright died after this suit was filed and his administratrix was substituted as plaintiff.

The defendant has moved for Summary Judgment on the grounds that the prior action against the City of Pittsburgh and the settlement thereof bars this action.

This is a diversity suit and the court must apply Pennsylvania law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 1938.

While plaintiff's complaint against the City of Pittsburgh only alleged "contusions and blows to the chest", when the defendant sought the particulars of the claim the plaintiff supplied many of the same elements of damages that are now being asserted in the present suit. It is apparent that the City of Pittsburgh was being informed that it faced a possible claim that among the consequences of plaintiff's injuries was the development of a cancer of the lung. It is noted that in answer to Interrogatory Number 17 plaintiff claimed medical bills of $1,429.50 due the Montefiore Hospital where he underwent surgery for the lung cancer, and the same bill is being presented by plaintiff in the present action against R. J. Reynolds Tobacco Company.

A claim for cancer resulting from a single traumatic impact has been sustained in the Pennsylvania courts. Menarde v. Phila. Transp. Co., 376 Pa. 497, 103 A.2d 681 1954. The complaint in the case against the City of Pittsburgh was broad enough to include a claim for cancer arising from the alleged "contusions and blows to the chest". Matthews v. Spiegel, 385 Pa. 203, 122 A.2d 696 1956 Nark v. Horton Motor Lines, Inc., 331 Pa. 550, 1 A.2d 655 1938.

The controlling principle of law advanced by the defendant is that stated in Sections 885(1) and 886 of the Restatement, Torts:

§ 885.

"(1) A valid release of one tortfeasor from liability for a harm, given by the injured person, discharges all others liable for the same harm, unless the parties to the release agree that the release shall not discharge the others and, if the release is embodied in a document, unless such agreement appears in the document."

* * * * * *

§ 886.

"The discharge or satisfaction of a judgment against one of several persons each of whom is liable for a single harm discharges each of the others from liability therefor."

While the Restatement speaks in terms of release or satisfaction of judgment, the Pennsylvania cases treat the marking of the docket "settled and discontinued" as having the same effect. Sustrik v. Jones & Laughlin Steel Corporation, 413 Pa. 324, 197 A.2d 44, 46 1964.

"The present claim in so far as it involves the recovery of damages for the removal of the coal and damage to the buildings on plaintiffs' land is barred by the settlement and discontinuance of the 1957 action. As between the parties involved, the settlement and discontinuance had the same effect as the entry of a judgment for the defendant in the proceedings. As between the parties to the action, it is conclusive as to the cause of action asserted therein: Baumgartner v. Whinney, 156 Pa.Super. 167, 39 A.2d 738 1944; Currier v. Bilger, 149 Pa. 109, 24 A. 168 1892; Berg v. Cypher, 291 Pa. 276, 139 A. 844 1927; Sale v. Ambler, 335 Pa. 165, 6 A.2d 519 1939.

* * * * * *

The final determination of the 1957 action precludes the plaintiffs from maintaining this suit, even though other grounds for relief are asserted than those presented in the original action. That action was conclusive, not only as to those matters that actually were litigated, but also of those matters which could have been litigated therein." (Emphasis supplied.)

A standard Pennsylvania treatise recites the following effect of "settlement and discontinuance":

"Agreement of Settlement and Discontinuance. —A discontinuance or an agreement to discontinue in the usual form must be distinguished from an agreement to settle and discontinue, or from the marking of an action settled and discontinued, because the latter type of entry not only terminates the action in which the entry is made but ordinarily it has the effect of being res judicata of the cause of action. In such case, no subsequent action for the same cause may be brought as long as the discontinuance is outstanding.

In an action to which a counterclaim had been interposed, an order signed by both parties, directing the prothonotary to mark the suit `settled, discontinued and ended', terminated the counterclaim as well as the original action.

An agreement to mark an action `settled, discontinued and ended' is a contract which will be set aside only for want of consideration, lack of authority of an agent, or on the usual equitable grounds." (Emphasis supplied.) (footnotes omitted.) 5 Standard Pennsylvania Practice, Ch. 21, § 20, pp. 92, 93.

The Pennsylvania courts have long held that an injured party may maintain as many actions as there are joint tort feasors but may obtain but one satisfaction. In Peterson v. Wiggins, 230 Pa. 631, 79 A. 767 1911, the plaintiff started a suit against one defendant to recover damages for the wrongful death of her husband. That case was then settled for $500 and the record was marked "settled, discontinued, and ended". The plaintiff then brought suit against another defendant, Wiggins. The Supreme Court affirmed judgment for the defendant stating: "Since death happens but once to any individual, the inference—we put it very mildly—is that these several defendants in these several suits were joint tortfeasors." (p. 634, 79 A. p. 768).

In Thompson v. Fox, 326 Pa. 209, 192 A. 107, 109 1937, the Supreme Court of Pennsylvania stated:

"Nor is it material whether the tortfeasors involved committed a joint

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