Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1967, No. 4001, in case of Lois Shamey and James Shamey, her husband, v. State Farm Mutual Automobile Insurance Company.
Robert B. Truel, with him Blair J. Harkett, and Truel and Ploeger, for appellants.
C. Leon Sherman, with him Harry W. Miller, and Miller and Sherman, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Van der Voort, J., dissents.
[ 229 Pa. Super. Page 217]
This appeal arises from the lower court's granting of State Farm's motion for a summary judgment which resulted in dismissal of the Shameys' suit in assumpsit. The facts are as follows:
On a snowy evening in December of 1963, the Shameys were returning home from a visit with their relatives. The route they took required that they negotiate a hill on Babcock Boulevard in Allegheny County, which had become very slippery because of impacted snow and ice. With tires spinning as they started their climb, their car could not pull the grade, and it came to a standstill short of the hilltop. A car driven by a Mr. McFarland then appeared at the crest of the hill and began its descent. It apparently skidded and struck the Shamey car, spinning it 180 degrees, so that the Shameys' car was then facing downhill. The Shamey
[ 229 Pa. Super. Page 218]
car had just stopped its half revolution when a third vehicle, driven by a Mr. Osborn who was also descending the hill struck their car. While Mr. McFarland carried liability insurance, Mr. Osborn was uninsured. The Shameys subsequently filed suit against McFarland who joined Mr. Shamey and Osborn as additional defendants. At the instance of State Farm, the Shameys also filed suit against the uninsured Osborn.
The Shameys were insured by the defendant herein, State Farm Mutual Automobile Insurance Company, and their policy contained the standard Uninsured Motorists Clause as required by the Act of August 14, 1963, P. L. 909, § 1, as amended, Pa. Stat. Ann. tit. 40, § 2000. Payment under the Uninsured Motorists Clause was not unconditional, however. There were conditions precedent to State Farm's duty to pay thereunder, the most important of which was the exclusion of coverage for "bodily injuries . . . with respect to which . . . any person entitled to payment under this coverage . . . without written consent of the company, [shall] make any settlement. . . ."
In May of 1967, State Farm and the Shameys reached a compromise under the Uninsured Motorists Clause whereby State Farm tendered a check for $6,500 in return for the Shameys' execution of an instrument entitled, "Release and Trust Agreement." In pertinent part the Release and Trust Agreement provided:
"Received of State Farm Mutual Automobile Insurance Company . . . the sum of . . . $6,500.00 in full settlement and final discharge of all claims under the above numbered policy because of bodily injuries known and unknown and which may have resulted or may in the future develop and property damage sustained by Lois Ann Shamey by reason of an accident or occurrence ...