#### Marshall *v.*American Stores Company, Appellant.

*Negligence*— Automobile—Truck—Collision *with*— Release *of claim for personal injury*— Bffect *on claim for property damage.*

In an action to recover for damages to plaintiff’s automobile resulting from a collision with defendant’s truck, it appeared that plaintiff’s wife sustained personal injuries in the collision. It further appeared that plaintiff and his wife executed a release discharging the defendant from any claim because of loss or injury sustained by them in consequence of an “accident — whereby Mrs. Helene Marshall sustained injuries.”

Under such circumstances the court properly held that the release applied only to the personal injuries sustained by plaintiff’s wife and did not bar a claim for damages to the automobile.

Argued November 18, 1925.

Appeal No. 288, October T., 1925, by defendant, from judgment M. C. Philadelphia County, No. 477, July T., 1923, in the case of W. P. Marshall v. American Stores Company.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

Affirmed.

Trespass to recover damages to an automobile. Before Knowles, J., without a jury.

The facts are stated in the opinion of the Superior Court.

The court found for the plaintiff in the sum of $1,120.93 and entered judgment thereon. Defendant appealed.

*Error assigned*was, among others, the refusal of defendant’s motion for judgment non obstante veredicto.

*Richard A. Smith,*and with him *Louis Wagner,*for appellant.

The release was general: Ogden v. Trac*499tion Co., 202 Pa. 485; Hug v. Hall, 79 Pa. Superior Ct. 395; Fields v. Phila. R. T. Co., 273 Pa. 282.

*F. Carroll Fow,*for appellee.

The release did not bar plaintiff’s action for property damage: Frankel v. Quaker City Cab Co., 82 Superior Ct. 219; Matlack’s Appeal, 7 W. & S. 79; Cottrell’s Estate, 11 Phila. 93; Naglee’s Estate, 10 Pa. C. C. 525.

February 26, 1926:

Opinion by

Gawthrop, J.,

Defendant’s truck collided with plaintiff’s automobile, in which he and his wife were riding. The wife was injured and the automobile was damaged. This suit for the damages to the automobile was tried before a judge without a jury, and plaintiff has a judgment from which defendant appeals. The only questions properly raised by the assignments are: (1) Was defendant’s motion for judgment notwithstanding the findings of the trial judge properly refused; (2) was there error in the admission of evidence *t*

(1) The accident occurred September 19,1921. On November 16, 1921, plaintiff and his wife signed and delivered to defendant a release, the material part of which was as follows: “In consideration of the payment of six hundred and 00/000 Dollars to us in hand paid by American Stores Company we do hereby release aindj forever discharge said American Stores Company from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury which heretofore have been or which hereafter may be sustained by us in consequence of an accident, which occurred on or about the 19th of September, 1921, on White Horse Pike about two miles below Hammonton, N. J., whereby Mrs. Helene Marshall sustained injuries as the result of the automobile in which she was riding being struck by a truck of the American Stores Company.” Appellant’s contention is that this release was a bar to the present *500action, because it covered damage to the automobile, as well as the personal injuries sustained by Mrs. Marshall. The learned trial judge thought that it applied only to the personal injuries of Mrs. Marshall. The conclusion was correct. The language, “an accident, which occurred on or about the 19th of September......whereby Mrs. Helene Marshall sustained injuries,” clearly limits the instrument to the damages sustained by the husband and the wife as the result of the wife’s injuries. There is no specific reference in the release to the fact that the automobile was damaged. It was not a bar to the present claim. The first assignment of error is overruled.

(2) Plaintiff was permitted to testify as to the negotiations between him and the defendant’s insurance adjuster leading up to the settlement referred to in the release and state that the understanding between them was that the release covered only the damages resulting from the wife’s injuries. If the release is ambiguous the parol evidence as to the intention of the parties was relevant and admissible. If it was not, the admission of the evidence did defendant no harm. In fairness to the learned trial judge, it should be stated that before this parol testimony was admitted he stated that he would rule that the release applied only to the personal injuries of Mrs. Marshall. Manifestly, the court appreciated that the evidence, which is the subject of this complaint, was not admissible. The second assignment of error is dismissed.

Although the assignment of error complaining that the evidence does not warrant a finding of damages in the amount allowed by the trial judge is not supported by an exception, we have read the evidence and are not satisfied that it was insufficient to sustain the finding.

The judgment is affirmed.

Postee,, J., dissents.