Appeals, Nos. 76 and 77, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1958, No. 1125, in case of Mary A. Nash et al. v. Atlantic White Tower System, Inc. Judgment affirmed.
James F. Manley, with him Burns and Manley, for appellant.
Ralph S. Davis, Jr., with him Evans, Ivory & Evans, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
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 a release which specified the amount of $1364 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 $1364 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 ...