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POLLEY v. ATLANTIC REFINING CO. (03/23/65)

decided: March 23, 1965.

POLLEY
v.
ATLANTIC REFINING CO., APPELLANT



Appeals from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1962, Nos. 284 and 285, in cases of Kenneth B. Polley, Carla Polley, a minor by Wayne County Bank & Trust Company, her guardian, Linda Polley, a minor, by Wayne County Bank & Trust Company, v. Atlantic Refining Co., Robert G. Cochran and Kenneth B. Polley; and Wayne County Bank & Trust Company, administrator of estate of Doris Polley, deceased, and Wayne County Bank & Trust Co., administrator of estate of Sandra Polley, deceased, v. Atlantic Refining Co., Robert G. Cochran and Kenneth B. Polley.

COUNSEL

Kim Darragh, with him Meyer, Darragh, Buckler, Bebeneck & Eck, for appellants.

Arthur G. Stein, with him Stein & Winters, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Eagen and Mr. Justice O'Brien concur in the result. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this dissenting opinion.

Author: Musmanno

[ 417 Pa. Page 550]

On August 5, 1961, Kenneth B. Polley was driving his automobile, with his wife and children as passengers, on Route 22 in Allegheny County when it came

[ 417 Pa. Page 551]

    into violent collision with a tractor-trailer owned by the Atlantic Refining Company and being operated by Robert G. Cochran. As a result of the accident, Polley's wife and a daughter were killed and two of his other children were seriously injured. The tractor-trailer was damaged to the extent of a repair bill amounting to $1131.02.

The Atlantic Refining Company (hereinafter referred to as Atlantic) claimed that the collision was due to the negligence of Kenneth Polley and demanded payment of him for the repair bill. Polley's insurance carrier, the Ohio Casualty Insurance Company, agreed to pay Atlantic $1131.02 in full settlement of all claims it and its driver Robert G. Cochran might have against Kenneth Polley. After some negotiations, including exchange of letters, an agreement was reached between the parties and, on November 13, 1961, the Ohio Casualty paid to Atlantic $1131.02. In consideration for this payment, Atlantic turned over to Ohio Casualty, in behalf of Kenneth Polley, a release which reads as follows:

"Release of All Claims

"Know Ye, that I/We Atlantic Refining Company and Robert Glen Cochran For and in consideration of the sum of One thousand one hundred and thirty-one and 02/100 Dollars ($1131.02 --) to me/us in hand paid by Kenneth B. Polley the receipt of which is hereby acknowledged, I/We being of lawful age, for myself/ourselves, my/our heirs, administrators, executors, successors and assigns hereby remise, release, acquit and forever discharge the said Kenneth B. Polley, his/her successors and assigns, and/or his, her, their, and each of their associates, heirs, executors and administrators, and any and all other persons, associations and/or corporation, whether herein named or referred to or not, of and from any and every claim, demand, right, or cause of action of whatever kind or nature, either in

[ 417 Pa. Page 552]

    law or in equity, especially the liability arising from an accident which occurred on or about the fifth day of August, 1961 at or near Carnegie, Penna. for which I/We have claimed the said Kenneth B. Polley to be legally liable, but this release shall not be construed as an admission of such liability.

"In Witness Whereof, I/We have hereunto set my/our hand(s) and seal(s) this 7th day of November, 1961.

Read Carefully Before Signing

The Atlantic Refining Company, (Seal)

By H. Borton Off, ...


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