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CADY v. MITCHELL (06/17/66)

decided: June 17, 1966.

CADY
v.
MITCHELL, APPELLANT



Appeal from judgment of Court of Common Pleas of Allegheny County, April T., 1962, No. 3627, in case of Dorothy M. Cady et vir v. Patricia Mitchell.

COUNSEL

David B. Fawcett, Jr., with him Dickie, McCamey & Chilcote, for appellant.

Thomas Hollander, with him Evans, Ivory & Evans, for appellees.

Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Montgomery, J. Wright, J., concurs in the result.

Author: Montgomery

[ 208 Pa. Super. Page 18]

The primary question in this appeal is the effect of a general release signed by both appellees ". . . of any damage, loss or injury, which heretofore have been or which hereafter may be sustained by us in consequence of accident which occurred on 11-17-60 at McKeesport, Pa.", and which contained a further provision that, "This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries . . ."

The consideration for the release was $130.42, the amount of the lowest estimate received by appellant for the repair of the automobile involved in the accident which was owned by Mr. Cady. At the time of the execution of the release Mrs. Cady disclaimed any injuries from the accident, except a slight nervousness, described by Mr. King, a witness for the appellant, as a normal reaction from any automobile accident. However, Mr. King, who was the representative of appellant's insurance carrier, according to his own testimony, included Mrs. Cady in the release as an extra precaution, knowing at the time that she asserted no bodily injuries, nor were any apparent. It is also noted that Mr. King took separate releases from the appellees for injuries sustained by their children who were injured in the accident.

Subsequently Mrs. Cady developed symptoms which indicated she had sustained bodily injuries in the accident, for which she sought damages in this lawsuit. The record is clear that these injuries were not known

[ 208 Pa. Super. Page 19]

    to either party at the time of the execution of the release.

A release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties when it was given and the words used in a release ought never to be extended beyond the consideration; otherwise it would make a release to the parties, what they never intended or contemplated. Cockcroft v. Metropolitan Life Insurance Company, 125 Pa. Superior Ct. 293, 189 A. 687 (1937), cited with approval in Brill's Estate, 337 Pa. 525, 12 A.2d 50 (1940). Where the terms of the release and the facts and circumstances existing at the time of its execution indicate the parties had in mind a general settlement of accounts, the release will be given effect according to its terms. Brill's Estate, supra; Flaccus v. Wood, 260 Pa. 161, 103 A. 549 (1918). However, Flaccus v. Wood is also authority for holding that a receipt, although prima facie evidence of payment and settlement, may be set aside for weighty reasons and by clear and satisfactory proof.

Although general releases ordinarily are interpreted to exclude claims not contemplated by the parties in many jurisdictions and by statute in some, 76 C.J.S. Release ยง 52, and cases cited thereunder, we are confronted in the present case with a provision including unknown claims from unsuspected injuries. Although no case in Pennsylvania in point has been referred to us, it would appear that the weight of authority in other jurisdictions find this inclusion to be ineffectual to cover unknown claims unless the surrounding circumstances indicate that both parties contemplated their inclusion. Regardless of how broad or inclusive they may have been drawn by legal ingenuity, ...


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