Mannke v. Benjamin Moore & Company

• Decision Date: 29 March 1967
• Docket Number: No. 16053.,16053.
• Citation: 375 F.2d 281
• Parties: Francis E. MANNKE, Appellant, v. BENJAMIN MOORE & COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

375 F.2d 281 (1967)

Francis E. MANNKE, Appellant, v. BENJAMIN MOORE & COMPANY.

No. 16053.

United States Court of Appeals Third Circuit.

Argued December 22, 1966.

Decided March 29, 1967.

Rehearing Denied May 15, 1967.

Hymen Schlesinger, Pittsburgh, Pa., for appellant.

David B. Fawcett, Jr., Pittsburgh, Pa. (Robert S. Barker, Dickie, McCamey & Chilcote, Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, HASTIE and SEITZ, Circuit Judges.

OPINION OF THE COURT

BIGGS, Circuit Judge.

Mannke, the plaintiff-appellant, had stopped his automobile when it was hit in the rear by a car belonging to Benjamin Moore & Company. Three days later, on September 23, 1963, Mason, an adjuster for Moore and Company's insurance company, Sun Insurance Company, contacted Mannke. On September 30, 1963, Mannke visited Mason at his office where the terms of a release were negotiated but no release was then signed.

The record by Mannke's own testimony shows that at the office conference he complained to Mason of some physical discomfort. The adjuster offered him $93.50; $68.50 for property damage and $25.00 for a medical examination since Mannke had not yet seen a doctor. A contract reciting $93.50 as consideration for the release of all claims for personal injury and property damage was sent to Mannke, was signed by him on October 25, 1963, was witnessed by his wife and was returned to Sun Insurance. Sun Insurance then issued a draft which Mannke received but returned without cashing. On December 20, 1963, an action was instituted in the court below, jurisdiction being founded on diversity of citizenship. The case was tried by a judge and jury.

The defendant-appellee, Moore and Company, pleaded the release as a defense. The trial court, exercising its discretion under Rule 42(b) of the Federal Rules of Civil Procedure, 28 U.S.C., ordered the issue of the validity of the release tried prior to the issues of liability and damages.

At the trial on the issue of the validity of the release Mannke testified that from the occurrence of the accident, including the period in which the release was negotiated and signed, he had suffered lapses of memory and general disorientation. He did not, however, deny the authenticity of his signature on the release. Mannke stated that neither at the time of the conference with Mason on September 30, 1963, nor at the time he signed the release on October 25, 1963, had he seen a doctor or realized that he was injured.¹ At no time, Mannke asserted, did he intend the $25.00 to release his claim for injuries which had not yet manifested themselves.

All evidence relating to the release was presented for the determination of the jury under a special interrogatory limited to the validity of the release. The jury found the release to be valid and judgment was entered against Mannke. It is from the denial of his motion for a new trial that Mannke has taken this appeal. See 251 F.Supp. 1017 (1966).

We have concluded as did the court below that the law of Pennsylvania applies since the Commonwealth is the "center of gravity" of the contest and "has the most significant contacts with the matters in dispute". Auten v. Auten, 308 N.Y. 155, 160, 124 N.E.2d 99, 101-102, 50 A.L.R.2d 246 (1954), as approved in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).

Mannke's motion for new trial was based on several alleged errors of the trial court in its charge to the jury. These will be considered seriatim.

Mannke contends first that the trial court improperly refused to charge that the release was an executory contract of accord without satisfaction and therefore revocable at will. We cannot agree, for the record shows the following sequence of undisputed events that compel a contrary conclusion: Sun Insurance sent a release in accordance with the terms stated by Mason to Mannke and Mannke signed the release on October 25. Sun then issued its draft for the agreed amount which Mannke received on November 14. Mannke did not inform Sun Insurance of his intention to disaffirm the release until December 20. On this ground the trial court correctly distinguished the circumstances of the case at bar from those of Nash v. Atlantic White Tower System, Inc., 404 Pa. 83, 84-85, 170 A.2d 341 (1961). In the Nash case the plaintiff had notified the defendant's insurer of her intention to disaffirm the release agreement before the insurer tendered to her the agreed consideration. This fact, rather than Nash's subsequent refusal to cash the insurer's check, created a basis for the court's charge in Nash that the circumstances could be considered legally as an accord without satisfaction. In the case at bar Mannke's refusal to accept Sun Insurance's tendered check without previously disaffirming the contract cannot be deemed to vitiate the binding character of the release.

Mannke asserts next that although the release may be valid as to the injuries of which he was aware at the time he received the insurer's check, it was not intended to cover injuries which were not known to him at that time. The jury apparently did not agree and there is ample evidence to support its verdict. In a recent opinion, Cady v. Mitchell, 208 Pa.Super. 16, 220 A.2d 373 (1966), the Superior Court of Pennsylvania affirmed the verdict of a jury which in effect found that despite an explicit provision in a release covering unknown injuries, the circumstances surrounding the preparation and signing of the release were so confused that the jury could find that there had been no meeting of the minds and hence the terms of the release relating to unknown injuries could be found by the jury to be invalid. But in the instant case the jury was entitled to draw a contrary inference. The circumstances are clear. The issue before this court is not what we would have found in respect to these circumstances had we been the trial court, but only whether there is sufficient evidence to support the jury's verdict. There was testimony which tended to controvert Mannke's evidence as to his loss of memory. The issue was one of credibility to be weighed and decided by the jury. We cannot say that the jury's verdict was not supported by sufficient evidence.

Mannke next contends that the trial judge incorrectly charged the jury that "The best evidence of intent of a party to a release of course is the actual * * * release and a release * * * prima facie and presumptively expresses the intention * * *" of the parties. Mannke contends that intention is a subjective state of mind and therefore the terms of the release, under the circumstances of this case, do not demonstrate the intention of the parties. But on reading the trial judge's charge in this respect we find it in no way incompatible with Mannke's contention. The trial judge instructed the jury as to what evidence under the Pennsylvania law should be given weight in determining Mannke's state of mind. He did not negate Mannke's asserted defense of incompetence. The trial judge in...