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JENKINS v. PEOPLES CAB COMPANY ET AL. (06/17/66)

decided: June 17, 1966.

JENKINS
v.
PEOPLES CAB COMPANY ET AL., APPELLANTS



Appeal from judgment of County Court of Allegheny County, No. 174 of 1964, in case of Ruth Jenkins v. Peoples Cab Company et al.

COUNSEL

Raymond F. Keisling, with him Clem R. Kyle, for appellants.

No argument was made nor brief submitted for appellee.

Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Hoffman, J., supporting the affirmance. Wright, Montgomery, and Jacobs, JJ., would grant a new trial.

[ 208 Pa. Super. Page 132]

The six judges who heard the argument of this appeal being equally divided in opinion, the judgment of the court below was affirmed.

Disposition

Judgment affirmed.

Opinion by Hoffman, J., supporting the affirmance:

On January 31, 1963, Ruth Jenkins was injured while being transported by cab to her home in Pittsburgh. In January 1964 she filed a complaint in trespass. After trial the jury returned a verdict in her favor for $2442.25 against the driver of the cab, John Johnson, and the owner, Peoples Cab Company.

The court then reconvened to determine whether a release signed by plaintiff barred recovery. Plaintiff admitted that she had executed the release at which time she received $20.00. She contended, however, that the release was secured through fraud and misrepresentation by an agent of the company while she was in an enfeebled physical and mental condition. The jury found the release invalid. In this appeal defendants

[ 208 Pa. Super. Page 133]

    challenge only the determination by the jury that the release is invalid.

Defendants first contend that plaintiff's evidence was insufficient to support the setting aside of the release. The rule is well established that to overturn a written instrument the evidence in proof thereof must be clear, precise and indubitable. Nocito v. Lannuitti, 402 Pa. 288, ...


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