have been confused or incompetent when he signed the release although he had made no such finding on his first examination and had conducted a second examination shortly before trial for the specific purpose of establishing a basis for this testimony. At best the doctor's testimony was weak and uncertain. The treating physician was not called, nor were any independent witnesses called on plaintiff's condition.
While ordinarily an action to set aside a release is brought under the equitable jurisdiction of the court, here the release was pleaded as a defense in a negligence suit, and plaintiff was entitled to a jury trial on all issues. Jacob v. City of New York, 315 U.S. 752, 62 S. Ct. 854, 86 L. Ed. 1166 (1941); Callen v. Pennsylvania R.R., 332 U.S. 625, 68 S. Ct. 296, 92 L. Ed. 242 (1948). It is within the discretion of the trial judge to grant a separate trial on this issue under F.R.Civ.P., Rule 42(b). Bowie v. Sorrell, 209 F.2d 49, 43 A.L.R.2d 781 (4th Cir., 1953). This court divided the issues and required production of evidence on the release first, upon which a special interrogatory was then submitted to the jury.
The jury was instructed that the intention of the parties at the time the release was signed governs, and that it was incumbent upon the plaintiff to carry the burden of proof that his mental condition was such that he was unable to form an intention. To permit a jury to avoid a release, the evidence must be clear, precise and indubitable. Broida, to Use of Day v. Travelers' Ins. Co., 316 Pa. 444, 175 A. 492 (1934); Scanlon v. Pittsburgh Railways, 319 Pa. 477, 181 A. 565 (1935). While the Pennsylvania law requires that the Trial Judge must make a determination of whether the evidence meets this standard before submitting the question to the jury, see Broida, to Use of Day v. Travelers, cit. supra, 316 Pa. at p. 447, 175 A. 492, in view of the Federal Rule that a plaintiff is entitled to a jury trial on the issue of validity of the release, the issue was submitted to the jury under instructions that they must find the evidence clear, precise and indubitable, to avoid the release.
It appears that the clear, precise and indubitable rule to be determined by the Judge is limited to the plaintiff's evidence. Where defendant's contradicting evidence is to be considered, the matter must be submitted to the jury. Lucas v. Gibson, 341 Pa. 427, 19 A.2d 395 (1941).
Plaintiff complains of the denial of many of its points for charge and of the charge under which this issue was submitted. We can find no basis in the evidence for any charge dealing with representations made by the defendant to secure this release upon which plaintiff relied. There was no evidence that the payment of $25.00 for personal injuries in order to cover the expense of a physician's examination made the release contingent upon the results of that examination. We do not find the principle of Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 79 S. Ct. 760, 3 L. Ed. 2d 770 (1959) applicable.
Nor do we think the Court exceeded its authority in quoting from the appellate courts in Pennsylvania on the policy of the law with respect to release as stated in Bollinger v. Randall, 184 Pa.Super. 644, at pp. 650, 651, 135 A.2d 802 (1957).
"It is not error for a trial judge to incorporate in his instructions to the jury statements taken from a reported decision." Curnow v. West View Park Co., 337 F.2d 241, at p. 242 (3rd Cir. 1964).