Appeal, No. 366, Jan. T., 1960, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1957, No. 933, in case of John Nocito v. Pasquale Lannuitti. Judgment affirmed.
Joseph S. Lord, III, with him j/ohn J. McCarty, and Richter, Lord & Levy, for appellant.
R. L. Goerwitz, Jr., with him John J. McDevitt, 3rd, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
This is an appeal from a judgment entered in a trespass action upon a verdict directed by the court.
On May 27, 1956 an accident occurred at the intersection of Tenth and Shunk Streets, Philadelphia, between a motor vehicle driven by John Nocito and a motor vehicle driven by Pasquale Lannuitti. Twenty-three days after the accident, Nocito signed a general release of all claims and rights of action arising out of this accident and received from a representative of Lannuitti's insurance carrier a check for $125 which Nocito endorsed, cashed and the proceeds whereof he still retains.
Nocito instituted a trespass action against Lannuitti in the Court of Common Pleas No. 3 of Philadelphia County. Nocito alleged that the general release which he had executed was procured by fraud on the part of the adjuster for Lannuitti's insurance carrier and at trial he testified to the circumstances surrounding the execution of this release and the receipt by him of a check for $125. At the completion of the testimony, the trial court gave binding instructions to the jury to find a verdict for Lannuitti. After verdict, plaintiff's motion for a new trial was dismissed by the court en banc and this appeal was taken.
The court below in its opinion supported the direction of a verdict for Lannuitti upon two grounds: (1) that Nocito failed to sustain his burden of proving that the release was procured by fraud and (2) that Nocito did not, after "discovering" the alleged fraud, return the consideration for the release to Lannuitti or his insurance carrier.
We are satisfied from an examination of this record that the court below was correct in its direction of a verdict for Lannuitti. It was Nocito's burden to prove that this release was procured by fraud and the evidence in proof thereof had to be clear, precise and indubitable: Doneyho v. Scottdale Connecting R.R. Co., 330 Pa. 207, 199 A. ...