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SMITH v. FENNER. (05/23/60)

May 23, 1960

SMITH, APPELLANT,
v.
FENNER.



Appeals, Nos. 36 and 37, Jan. T., 1959, from decree of Court of Common Pleas of Northampton County, Nov. T., 1957, No. 6, in equity, and from judgment, June T., 1952, No. 133, in trespass, in cases of Herbert F. Smith v. Donald Fenner et al. and Same v. Joseph Falcone et al. Decree affirmed; judgment reversed.

COUNSEL

Everett Kent, with him S. M. Flitter, for appellant.

J. Douglas Fackenthal, with him Edward J. Danser, and Fackenthal, Teel & McGiffert, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 399 Pa. Page 634]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

We have before us an appeal in each of two distinct actions: a personal injury action and an equity action, the latter seeking to render void a release given to one of three alleged joint tortfeasors by the plaintiff in the personal injury action. The basic issue is the impact, if any, upon this release of the Uniform Contribution Among Tortfeasors Act (herein called Uniform Act) of July 19, 1951, P.L. 1130, 12 PS §§ 2082-2089.

Shortly after midnight on June 4, 1950, two automobiles - owned by Joseph Falcone and Ruth P. McBeth, respectively - were standing upon state highway 712, Upper Mount Bethel Township, Northampton County, with the bumpers of both automobiles interlocked. Herbert Smith, aiding Falcone and McBeth, was engaged in attempting to disengage the interlocked bumpers. An automobile driven by Donald Fenner then came along the highway, struck the McBeth automobile and Smith causing the latter very serious personal injuries.

Smith instituted an action for his personal injuries against Falcon and McBeth alleging they were, severally and jointly, liable for the happening of the accident. Falcone and McBeth then joined Fenner as an additional defendant on the theory that Fenner was either solely, or, jointly with them or either of them, liable to Smith, or liable over to them or either of them. Fenner, in his answers to Smith's complaint and to Falcone's and McBeth's complaint, affirmatively defended on the ground that Smith, on May 28, 1952, had

[ 399 Pa. Page 635]

    given him a written release*fn* which precluded any liability on his part not only to Smith but also to Falcone and McBeth. Falcone's and McBeth's answer to Smith's complaint averred that this release effectuated

[ 399 Pa. Page 636]

    not only a release by Smith of Fenner, but also of ...


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