Mannke v. Benjamin Moore & Company

• Decision Date: 29 March 1966
• Docket Number: Civ. A. No. 63-1114.
• Citation: 251 F. Supp. 1017
• Parties: Francis E. MANNKE, Plaintiff, v. BENJAMIN MOORE & COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

251 F. Supp. 1017

Francis E. MANNKE, Plaintiff, v. BENJAMIN MOORE & COMPANY, Defendant.

Civ. A. No. 63-1114.

United States District Court W. D. Pennsylvania.

March 29, 1966.

Hymen Schlesinger, Pittsburgh, Pa., for plaintiff.

David B. Fawcett, Jr., Dickie, McCamey & Chilcote, Pittsburgh, Pa., for defendant.

WEBER, District Judge.

Plaintiff was struck in his automobile on September 20, 1963. Damage to the automobile was $68.58. On Monday, September 23, 1963, an insurance adjuster called his home for an appointment, and plaintiff returned the call a few days later, made an appointment and saw the adjuster in his office on September 30, 1963. The adjuster offered to settle the property damage claim for $68.58, but plaintiff stated that his back was bothering him and he wanted to wait. The adjuster offered to pay an additional $25.00 for a personal injury claim to allow plaintiff to consult a physician if he desired. The plaintiff continued to work and did not consult a physician. There were later calls from the adjuster and on or about October 12, 1963, the adjuster mailed plaintiff a release form with a consideration of $93.58. On October 28, 1963, the release was returned in the mail to the adjuster signed by plaintiff and witnessed by his wife. A check was issued and mailed to plaintiff in November 1963, which was never cashed and which was returned to the company after suit was initiated. Defendant pleaded the release as a defense.

The issue of the release was tried separately and submitted to the jury for a special finding. They found the release valid and the court ordered judgment entered for defendant. Plaintiff has moved for a new trial.

Plaintiff and his wife admitted their signatures on the release to be genuine. Plaintiff testified that he has no independent recollection of signing the release because his memory was impaired after the accident. Plaintiff's wife testified that she remembers receiving the release in the mail, laying it on their desk with other papers. She does not remember signing the release but testified that her husband took care of business affairs and she would witness his signature to any paper on his request because she considered him fully capable of handling business affairs. On the other hand she testified that after the accident her husband was confused and forgetful.

Plaintiff alleges that the release is an executory contract without the cashing of the check, and is thus revocable at the pleasure of either party. The Court refused so to charge. The check for the amount stated in the release was delivered to plaintiff. There was no failure of consideration. We do not find the refusal to cash the check tendered as converting this into an accord without satisfaction. The check was for the amount agreed upon in the release. The release was under seal, consideration is imputed. American Equitable Assur. Co. of New York v. Mussoline, 201 Pa.Super. 271, at p. 277, 191 A.2d 862 (1963). Nash v. Atlantic White Tower S., Inc., 404 Pa. 83, 170 A.2d 341 (1961), is not in point because there the jury, by a special interrogatory, found that the defendant had acquiesced by its conduct in the rescinding of the release before the stated consideration was tendered.

Plaintiff also asserts mutual mistake of fact to set aside the release. It is claimed that both plaintiff and defendant were mistaken as to the seriousness and extent of plaintiff's injuries, which plaintiff now claims to be more grave than he then believed. We feel that this is also a matter of intent. Did the parties intend that the release would cover any and all injuries received, or did they intend that it cover those known to the parties at the time? The release was not signed until over a month after the accident. Plaintiff testified that he had vague complaints at the time and that he would await their development before executing a release. He continued to work, he did not consult a physician. He was aware of his injury. The time lapse was sufficient to allow him to discover the extent of his injury. Thus both parties were aware of his injury, but plaintiff did not take any further steps to determine the extent:

"* * * Underestimating damages or making a settlement before the damages are accurately ascertained is not considered such a mutual mistake of fact as to relieve from a release of damages or a settlement made by the parties." Bollinger v. Randall, 184 Pa.Super. 644, at p. 650, 135 A.2d 802, at p. 805 (1957).

See also Currier v. Bilger, 149 Pa. 109, 24 A. 168 (1892); Seeley v. Citizens' Traction Co., 179 Pa. 334, 36 A. 229 (1896).

Plaintiff claimed that he was incompetent at the time of signing the release. He testified that he has no present recollection of signing it, he has no recollection of an intent to sign, and he was surprised at the receipt of the check. He stated that after the accident he had lapses of memory. He couldn't remember what was stated to the adjuster, and he had memory lapses about other matters. However, he continued to work and did not consult a physician. He did testify that he was familiar with the nature and effect of a release. Upon cross-examination he remembered receipt of the check in late October or early November. He also testified that he first consulted his present attorney at about the same time, and told him that he had signed the release.

He produced in support of his contention of incompetence a medical witness who first saw plaintiff for an examination fourteen months later. The doctor testified that because of an injury to the neck it was possible that plaintiff could have been confused or incompetent when he signed the release although he had made no such finding on his first examination and had conducted a second examination shortly before trial for the specific purpose of establishing a basis for this testimony. At best the doctor's testimony...