Adams, Max Rosenn and Hunter, Circuit Judges.
In this diversity negligence case, the pivotal question is whether a plaintiff in a post-trial proceeding may move to set aside a joint tortfeasors' release after having waited until all the evidence in the trial has been completed before first announcing an intention to attack the release.
On October 21, 1965, the automobile operated by Oliver L. Goehring, in which his wife, Frances, was a passenger, was involved in a head-on collision with a truck driven by an employee of Diamond Milling Company. Mr. Goehring was killed and Mrs. Goehring suffered substantial injuries.
As a result of the accident, Mrs. Goehring had claims against her husband's estate and also against Diamond Milling.
Approximately one year after the accident, on October 20, 1966, Mrs. Goehring executed a joint tortfeasors' release*fn1 in favor of her husband's estate, in consideration of a $20,000 payment to her by the estate. The next day, Mrs. Goehring filed a three-count diversity tort action against Diamond Milling in the district court.
On her own behalf, Mrs. Goehring sued Diamond Milling for the injuries she received as a result of the accident, and as administratrix of her husband's estate, she sued the company pursuant to both the Pennsylvania Wrongful Death Act, Pa.Stat.Ann., tit. 12 § 1601, and the Survivors Act, Pa.Stat.Ann., tit. 20 § 320.603.
Diamond Milling answered the complaint by denying the negligence of its driver and alleging the sole or contributory negligence of the decedent, Mr. Goehring. In addition, Diamond Milling filed a third-party complaint against the estate of Mr. Goehring alleging that if Diamond Milling's driver were found negligent, Mr. Goehring was also negligent, and the estate should be liable for contribution in the event of a verdict for Mrs. Goehring in her own right against Diamond Milling.
The estate, as third-party defendant,*fn2 set up as its defenses that Mr. Goehring had not been negligent, and that in the event he were found to be responsible for the accident, the joint tortfeasors' release was an absolute bar to any recovery by Diamond Milling against the estate in the third-party action.
After pre-trial statements were filed by all parties, and a pre-trial conference was concluded, the case proceeded to trial before a jury on June 2, 1970. At the conclusion of the six-day trial, the jury returned its verdict on special interrogatories finding that Diamond Milling had been negligent, that the decedent, Mr. Goehring, had been negligent, that the combined negligence of both as joint tortfeasors caused the accident, that Mrs. Goehring sustained damages of $110,417 as a result of the accident, and that the Goehring Estate should not recover under either the Wrongful Death Act or the Survival Act.
Each party filed a motion for a new trial; all were denied. Diamond Milling then filed a motion to reduce the verdict in favor of Mrs. Goehring to a money judgment, requesting, in essence, that the $110,417 verdict be reduced by half because of the joint tortfeasors' release. With regard to Diamond Milling's motion, the district court held that, because Mrs. Goehring had filed an action in a Pennsylvania state court attacking the validity of the release, the court would not reduce the verdict, but would stay execution of the judgment until "a court of competent jurisdiction" determined the validity of the release.
Diamond Milling has appealed, urging that we order a new trial based on a number of alleged errors by the district court, or that we at least remand the cause so that the district court will mold the ...