Nash v. Atlantic White Tower System Inc.

• Decision Date: 02 May 1961
• Citation: 170 A.2d 341,404 Pa. 83
• Parties: Mary A. NASH and Granvel Nash v. ATLANTIC WHITE TOWER SYSTEM, INC., a corporation, Appellant.
• Court: Pennsylvania Supreme Court

170 A.2d 341

404 Pa. 83

Mary A. NASH and Granvel Nash v. ATLANTIC WHITE TOWER SYSTEM, INC., a corporation, Appellant.

Supreme Court of Pennsylvania.

May 2, 1961.

Burns & Manley, Pittsburgh (J. F. Manley, Pittsburgh on the brief), for appellant.

Ralph S. Davis, Jr., Evans, Ivory & Evans, Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

MUSMANNO, Justice.

Mrs. Mary A Nash Stepped into a hole in the pavement in front of the White Tower Restaurant on Sixth Street, Pittsburgh, and fell, sustaining injuries. She and her husband, Granvel Nash, brought suit against the owner, Atlantic White Tower System, Inc. and recovered substantial verdicts. The defendant moved for judgment n. o. v. and for a new trial, which motions were refused by the Court below.

The accident occurred on December 20, 1955. A representative of the insurance company covering defendant's liability, a J. C. Armstrong, discussed with Mrs. Nash the possibility of settlement and on May 25, 1956, submitted to her release which specified the amount of $1,364 as full settlement of the claims of both Mr. and Mrs. Nash. No check or money accompanied the blank release. Mr. and Mrs. Nash signed the release and mailed it to Armstrong.

On May 28, 1956, Mrs. Nash was examined by a Dr. Vates who found that her injured leg was not healing properly and that immediate further medical care was required. He placed her leg in a cast. The following day Mrs. Nash notified Armstrong of what had transpired and informed him she could not settle with White Tower on the basis of the release of May 25th. Mr. Armstrong replied:

'I am very sorry to hear that and I hope you progress nicely, and please keep in touch with me. Let me know how you get along.'

A few days later Mrs. Nash received a check from the insurance company in the amount of $1,364 but she returned it with the following letter:

'I am returning the check as per our phone conversation today regarding my leg being put in a plaster cast.'

In July or August of that year Armstrong called Mrs. Nash to ask how she was progressing and she informed him that she probably would need surgery. He replied:

'You let me know if anything like that develops.'

Mrs. Nash was required to undergo hospitalization and she advised Mr. Armstrong to that effect. While in the hospital she was notified by Armstrong that he was being transferred to another city and he sent her forms for her doctors to fill out. In January, 1957, a Mr. Rizzo, Armstrong's successor, called at her home, to inquire as to her health, since she had now been discharged from the hospital. Still later she had to re-enter the hospital and she acquainted Rizzo with that fact. In the early summer of 1957 when she was again at home, Rizzo called to ascertain the condition of her health and to inquire if she had by now received all her medical bills. There were other visits unnecessary to record here. In August she tendered to Rizzo the bills covering the medical and hospital care she had received.

Eventually she and Rizzo discussed a final settlement and she stated a sum which he regarded as reasonable. He submitted the offer to his company. All these calls, visits and inquiries reached an anti-climax in September, 1957, however, when Rizzo notified Mrs. Nash that his company refused to pay the sum she requested and that it would stand on the release of May 25, 1956. Mr. and Mrs. Nash now entered suit against White Tower and won verdicts in the sum of $7,000 for Mr. Nash and $18,000 for Mrs. Nash.

In its appeal from the action of the court below, the appellant contends that the release signed by the Nashes precludes them from claiming a larger sum than the amount specified in the release. At the trial the Court charged the jury that if the negotiations between the Nashes on one side and Armstrong and Rizzo on the other resulted in a rescission of the release of May 25, 1956, the Nashes were not bound by its provisions. At the defendant's request the Court submitted to the jury two interrogations on the subject. They were replied to as follows:

'1. Did Mr. and Mrs. Nash intend to settle their claims against the defendant when they signed the Release of May 25, 1956, and mailed it back to Mr. Armstrong?

'X (Yes)

'(No) '2. Did the defendant by its representatives, Mr. Armstrong and Mr. Rizzo, after June or July 1956, by their activities acquiesce in rescinding the prior settlement of May 25, 1956?

'X (Yes)

'(No)'

In spite of this factual determination of the issue, submitted by the defendant itself, it still insists that the release bound the plaintiff irrevocably. This presupposes the proposition that when two persons contract with one another to do or not to do a certain thing, they may never again mutually agree to change their minds. This is a strange doctrine. A contract is not like the laws of Medes and Persians, reputed to be eternally unalterable.

What can be done under the law can be undone by law when all persons involved agree on the necessary procedure. A contract is not to be regarded as a Kamikaze plane in which the parties seal themselves for mutual destruction. When they both decide to change their minds, they unlock the seal and re-negotiate as to their future intra-party relationship.

As to the right of the Nashes and the insurance company to mutually agree on a change in their contract of May 25, 1956, there can be no question. In the case of Himeles v. Rose, 84 Pa.Super. 363, 365, the Court said:

'It is settled that it may be shown by parol that a written contract was subsequently modified or abandoned, and this may also be shown by the conduct and acts of the parties: 1 Beach on Contracts 943. The law is thus stated in Holloway v. Frick, 149 Pa. 178: 'It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted, and this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alterations' * * *. The mutual unexecuted undertakings of an existing contract are a sufficient consideration for the cancellation of such contract and the substitution of a new one with different terms.'

Then the appellant argues:

'The question of whether or not Mr. Nash ever received the agreed-upon consideration should not have been introduced in this case. The Release on its face...