Emery v. Mackiewicz

• Decision Date: 19 March 1968
• Citation: 429 Pa. 322,240 A.2d 68
• Parties: Robert W. EMERY v. Joseph J. MACKIEWICZ and Lewis Lampman, Appellants.
• Court: Pennsylvania Supreme Court

240 A.2d 68

429 Pa. 322

Robert W. EMERY v. Joseph J. MACKIEWICZ and Lewis Lampman, Appellants.

Supreme Court of Pennsylvania.

March 19, 1968.

Rehearing Denied April 19, 1968.

Edward E. Hosey, Plymouth, John H. Hibbard Wilkes-Barre, Hugh McMenamin, Scranton, for appellants.

Perry J. Shertz, Rosenn, Jenkins & Greenwald, Wilkes-Barre, for appellee.

Before BELL C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

Plaintiff (appellee) brought a trespass action for personal injuries arising out of an automobile collision on South River Street in Wilkes-Barre on June 6, 1960. Plaintiff claimed that his automobile while stopped on River Street was hit from the rear by defendant Lampman's vehicle, which was being driven by his agent, Mackiewicz. After plaintiff had been examined, not by one but by two of his physicians, and had been advised by them of the injuries he sustained and of the prognosis, he agreed to settle for $350, and in consideration of the payment of this sum a release, under seal, was entered into and executed by all the parties, namely, by plaintiff and by the agent of the defendants. The release, dated July 22, 1960, is so important that it will be quoted at some length:

'RELEASE IN FULL

'KNOW ALL MEN BY THESE PRESENTS, That I, Robert W. Emery, for the sole consideration of three hundred and fifty dollars and 00/100 Dollars, to me in hand paid by Louis Lampman, Joseph J Mackiewicz have released and discharged, and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge the said Louis Lampman, Joseph J. Mackiewicz and all other persons, firms or corporations from all claims, demands, damages actions, or causes of action, on account of damage to property, Bodily injuries ^[*] or death, Resulting, or to result, from an accident to _ _ which occurred on or about the 6th day of June, 1960, by reason of accident on South River St., Wilkes Barre, Pa., and of and for all claims or demands whatsoever in law or in equity, which I, my heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.

'IT IS UNDERSTOOD AND AGREED THAT this is a Full and final release of all claims of every nature and kind whatsoever, And release claims that are Known and unknown, suspected and unsuspected.

'IN WITNESS WHEREOF, I have hereunto set my hand and seal this 22 day of July, 1960.

In the Presence Of:

/s/ Michael Chup, Jr.

/s/ Robert W. Emery (SEAL)'

125 N. Atherton St.

Kingston, Pa.

On August 15, 1961, over a year after plaintiff had signed the above-recited release, plaintiff commenced his present action in trespass to recover for injuries allegedly sustained in the aforesaid automobile accident on June 6, 1960. Defendants in their answer denied liability and pleaded the release as a complete defense. Plaintiff in his 'reply to new matter' alleged that the release was executed while the parties were laboring under a 'mutual mistake of fact' as to his injuries. Defendants then moved for a summary judgment, which was denied.

Plaintiff was examined on several occasions by Dr. Joseph P. Chollak and by Dr. L. W. Jones during the period between the accident and the execution of the above-recited release. Plaintiff's doctors, Dr. Jones and Dr. Chollak (who went into greater detail) testified that at the time the release was executed by the plaintiff, he was of the opinion and so informed the plaintiff that the injuries which plaintiff had suffered consisted of a muscle strain in the area of the neck, and that a month and a half later he discovered plaintiff had a rupture of a disc and that this constituted a 'separate injury' from his neck muscle injuries. Defendants (a) brought out on cross-examination that plaintiff himself was a physical therapist and was experienced in muscle building and structure and human anatomy, and (b) then produced medical evidence that the rupture of the disc was a consequence of the injuries in plaintiff's neck region, and not a separate injury in itself. Both doctors further testified that plaintiff's ball playing subsequent to the accident caused the severe pain in plaintiff's neck and disc.

At the conclusion of the jury trial, the trial Judge rejected defendants' request for binding instructions, and in his charge directed the jury to make special findings on several issues.

The jury did not bring in a verdict of the amount of damages suffered by the plaintiff, but merely made a number of special findings. The jury specially found that at the time of the execution of the above-mentioned release, plaintiff believed his only injuries were injuries to his neck and that plaintiff and defendants alike were ignorant of the existence of injury to one of plaintiff's...