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April 17, 1969

Harry BONAR and Irma Bonar, Plaintiffs,
John R. HOPKINS, Defendant and Third-Party Plaintiff, v. Valetta N. INCLAN andLarry Inclan, Third-Party Defendants

The opinion of the court was delivered by: MILLER

Defendant answered the complaint denying liability, and filed a third-party complaint against Valetta N. Inclan and Larry Inclan, her husband, and owner of the car in which plaintiffs had been riding, charging them with negligence which caused or contributed to plaintiffs' injuries.

 By their answer, third-party defendants denied the allegations of negligence and pled a release which in relevant part provides:

 '(Plaintiffs) for the sole consideration of Sixteen Thousand Two Hundred Fifty and 00/100 Dollars to us in hand paid by Valletta Inclan have released and discharged * * * the said Valletta Inclan * * * and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries or death, resulting, or to result, from an accident * * * which occurred on or about the 23rd day of April, 1966, by reason of automobile accident on Pa. Rt. 19 in Peters Township, near McGrann Hill entrance, Pennsylvania * * *.'

 By answers to defendant's Requests for Admission of Facts and Genuineness of Documents, plaintiffs asserted that the release was the product of negotiations between their attorney and Mrs. Inclan's insurance carrier, that the release was executed by them, and that the stated consideration was paid to them.

 Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, alleging the absence of a genuine issue as to any material fact and asserting a right to a judgment against plaintiffs as a matter of law.

 A substantial amount of the argument regarding this Motion concerned the law applicable. Plaintiffs urge a reference to the West Virginia law, where they are domiciled and where the release was executed. Defendant argues for a reference to the law of Pennsylvania, where it appears that he is domiciled *fn1" and where plaintiffs' injuries occurred. Both plaintiffs and defendant acknowledge that the rule in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), indicates the criteria for resolving this issue. However, we shall not adjudicate which law is applicable, until it becomes apparent that such conflict exists.

 Both parties acknowledge the common law rule that the release of one joint tortfeasor has the effect of discharging all other joint tortfeasors. Both also acknowledge that Section 4 of the Uniform Contribution Among Tortfeasors Act, as enacted by the General Assembly of Pennsylvania, provides: 'A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides * * *.' 12 P.S. § 2085. However, plaintiffs urge that a different result obtains under a West Virginia statute which provides:

 'Liability of Joint Tort Feasors Not Affected by Release to or Accord and Satisfaction with Another. -- A release to, or an accord and satisfaction with, one or more joint trespassers, or tort feasors, shall not inure to the benefit of another such trespasser, or tort-feasor, and shall be no bar to an action or suit against such other joint trespasser, or tort feasor, for the same cause of action to which the release or accord and satisfaction relates.' Michie's Code of 1966, § 55-7-12.

 Plaintiffs seek to deny defendant the benefit of the release by relying on Mayle v. Criss, 169 F.Supp. 58 (W.D.Pa.1958), which construed a release analogous in all material terms to the release involved in the instant action. The Court concluded:

 'In view of the manifest law of West Virginia that specific words limit the meaning of general words, and the statutory declaration that a release to one or more joint trespassers shall not inure to the benefit of another such trespasser, it is my judgment that 'all other persons' should not be construed to effect the release of (defendant), who was not a party to its execution and who paid none of the consideration.' 169 F.Supp. 60.

 Reviewing the construction of the release in Mayle v. Criss, we note that the law of West Virginia observes the customary rule of contract construction which requires that the intent of the parties as gathered from the entire language of the instrument be ascertained. Bowlby-Harman Lumber Co. v. Commodore Services, Inc., 144 W.Va. 239, 107 S.E.2d 602 (1959); Eastern Gas and Fuel Associates v. Midwest-Raleigh, Inc., 374 F.2d 451 (4 Cir. 1967), cert. den. 389 U.S. 951, 88 S. Ct. 333, 19 L. Ed. 2d 360 (1967). As is apparent from the context of cases relied upon in Mayle v. Criss, supra, West Virginia courts apply the 'ejusdem generis' rule only where the intent of the parties to the instrument is itself ambiguous. See also Lewis v. Barnes Contracting Co., 179 F.Supp. 673 (N.D.W.Va.1959); Phillips v. Houston National Bank, 108 F.2d 934 (5 Cir. 1940); cf. Restatement of Contracts, § 236(c).

 In Panichella v. Pennsylvania R. Co., 150 F.Supp. 79 (W.D.Pa.1957), cause remanded 252 F.2d 452 (3 Cir. 1958), the Court in a pretrial proceeding found that a release materially analogous to those involved in Mayle v. Criss, supra, and the case at bar was ambiguous. In a subsequent review, the Court of Appeals for the Third Circuit inferentially repudiated these findings and gave effect to the release to exculpate the liability of a stranger to its negotiation and execution. Panichella v. Pennsylvania R. Co., 268 F.2d 72 (3 Cir. 1959), rev'g 167 F.Supp. 345 (W.D.Pa.1958). Since the release is clear and unambiguous, the rule of construction urged in Mayle v. Criss, supra, is inapposite.

 Reviewing now the Court's construction of the West Virginia statute in Mayle v. Criss, supra, we can not agree that it denies effect to the release as it pertains to defendant. In Leisure v. Monongahela Valley Traction Co., 85 W.Va. Va. 346, 101 S.E. 737 (1920), relied upon by the Court, the release by its terms ran only to the party supplying the consideration. The same appears true of the releases involved in other cases either cited by counsel or reviewed in the course of our own research. Duncan v. New River & Pochahontas Consolidated Coal Co., 114 W.Va. 388, 174 S.E. 370 (1933); New River & Pochahontas Consolidated Coal Co. v. Eary, 115 W.Va. 46, 174 S.E. 573 (1934); Rice v. Builders Material Co., ...

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