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EMERY v. MACKIEWICZ (03/19/68)

decided: March 19, 1968.

EMERY
v.
MACKIEWICZ, APPELLANT



Appeal from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1961, No. 1560, in case of Robert W. Emery v. Joseph J. Mackiewicz and Lewis Lampman.

COUNSEL

Edward E. Hosey, with him John H. Hibbard and Hugh J. McMenamin, for appellants.

Perry J. Shertz, with him Rosenn, Jenkins & Greenwald, for appellee.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen and Mr. Justice Eagen concur in the result. Mr. Justice Musmanno dissents. Mr. Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts.

Author: Bell

[ 429 Pa. Page 323]

Plaintiff (appellee) brought a trespass action for personal injuries arising out of an automobile collision on South River Street in Wilkes-Barre on June 6, 1960. Plaintiff claimed that his automobile while stopped on River Street was hit from the rear by defendant Lampman's vehicle, which was being driven by his agent, Mackiewicz. After plaintiff had been examined, not by one but by two of his physicians, and had been advised by them of the injuries he sustained and of the prognosis, he agreed to settle for $350, and in consideration of the payment of this sum a release, under seal, was entered into and executed by all the parties, namely, by plaintiff and by the agent of the defendants. The release, dated July 22, 1960, is so important that it will be quoted at some length:

"Release in Full

"Know All Men By These Presents, That I, Robert W. Emery, for the sole consideration of three hundred and fifty dollars and 00/100 Dollars, to me in hand paid by Louis Lampman, Joseph J. Mackiewicz have released and discharged, and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge the said Louis Lampman, Joseph J. Mackiewicz and all other persons,

[ 429 Pa. Page 324]

    firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries*fn* or death, resulting, or to result, from an accident to --- which occurred on or about the 6th day of June, 1960, by reason of accident on South River St., Wilkes-Barre, Pa., and of and for all claims or demands whatsoever in law or in equity, which I, my heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.

"It Is Understood And Agreed That this is a full and final release of all claims of every nature and kind whatsoever, and releases claims that are known and unknown, suspected and unsuspected.

"In Witness Whereof, I have hereunto set my hand and seal this 22 ...


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