Rediehs Exp., Inc. v. Maple, 1-985A219

• Decision Date: 23 April 1986
• Docket Number: No. 1-985A219,1-985A219
• Citation: 491 N.E.2d 1006
• Parties: REDIEHS EXPRESS, INC., and Wayne W. Jacob and John W. Snyder, Defendants-Appellants, v. Patricia MAPLE and James Maple, Plaintiffs-Appellees, The Indiana Department of Highways, Wayne W. Jacob, David W. Snyder, Edward W. Jessie, Lesco Truck Brokers, Inc., L.A. Wroten Co., and S.C. Shannon Company, Non-Appealing Defendants.
• Court: Indiana Appellate Court

Page 1006

491 N.E.2d 1006

REDIEHS EXPRESS, INC., and Wayne W. Jacob and John W.

Snyder, Defendants-Appellants, v. Patricia MAPLE and James Maple, Plaintiffs-Appellees,

The Indiana Department of Highways, Wayne W. Jacob, David W.

Snyder, Edward W. Jessie, Lesco Truck Brokers,

Inc., L.A. Wroten Co., and S.C. Shannon

Company, Non-Appealing Defendants.

No. 1-985A219.

Court of Appeals of Indiana,

First District.

April 23, 1986.

John T. Lorenz, Mark D. Gerth, Friedrich A.P. Siekert, Kightlinger, Young, Gray & Detrude, Indianapolis, for Rediehs Express, Inc., defendant-appellant.

R. Kent Witte, William H. Stone, Columbus, for plaintiffs-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellants, Rediehs Express, Inc. (Rediehs), Wayne Jacob (Jacob), and David W. Snyder (Snyder), have filed interlocutory appeals from adverse partial summary judgments fixing liability upon them for damages for personal injuries in a suit filed by Patricia Maple and James Maple (Maples) arising out of a motor vehicle collision.

We affirm.

STATEMENT OF THE FACTS

On June 10, 1983, Rediehs, a freight company operating under Interstate Commerce Commission (ICC) permits, leased a tractor and trailer from Snyder, who had no ICC permits, for a period of 30 days, the minimum period required by ICC regulations. The lease contained a clause by which lessor (Snyder) agreed to indemnify lessee (Rediehs) for loss arising out of the negligent operation of the vehicle. Further terms of the lease stated that Jacobs, Snyder's regular driver, would be Rediehs' driver. Rediehs' identification decal bearing its name and ICC identification number was placed on Snyder's tractor pursuant to the terms of the lease and pursuant to ICC regulations. Following instructions contained in the lease, Jacob and Snyder hauled a cargo from Michigan to Ft. Lauderdale, Florida, which they delivered on June 13, 1983. Snyder was directed by Rediehs to go toward northern Florida to get into position to pick up a northbound cargo for Rediehs. On June 12 Snyder entered into some arrangement with Lesco Truck Brokers, Inc. (Lesco), L.A. Wroten Co. (Wroten) and S.C. Shannon Company (Shannon) to transport a load of watermelons to Wisconsin. A dispute exists in the evidence as to whether Rediehs or its agents knew and consented to this contract. Rediehs submitted affidavits that none of its employees with authority to consent had authorized Snyder or Jacob to transport the watermelons and that it had received no payment therefor.

On June 15, 1983, while Jacob was driving the watermelon laden tractor and trailer, still carrying Rediehs' decal, and still operating within the term of the lease which was carried in the tractor, he became involved in a motor vehicle accident on Interstate 65 near Scottsburg, Indiana. As a result of the accident six people were killed and others injured, including Patricia Maple, who was forced over the side of a bridge into the creek below. Jacob was charged with, and pleaded guilty to, six counts of reckless homicide and eleven counts of criminal recklessness, Count 10 of which concerned Patricia Maple. By such pleas and by his deposition, Jacob admitted to entering a construction zone at an excessive speed during a rain storm. He admitted that he was negligent, he admitted the collision, and he admitted that his negligence caused Patricia Maple's injuries.

Suit was filed against Rediehs, Snyder, Jacob, the Indiana Department of Highways, Edward W. Jessie (a motorist), Lesco, Wroten, and Shannon. The latter three defendants were dismissed from the case on summary judgments. Conversely, partial summary judgments determined the issue of liability against Rediehs, Jacob and Snyder who appeal those decisions. In this appeal they raise only the issue of the propriety of summary judgments.

DISCUSSION AND DECISION

Issue I. Liability of Jacob and Snyder.

Jacob and Snyder contend that the trial court erred in entering summary judgment against them on the issue of liability because a genuine issue of material fact exists. They argue that in spite of the pleas of guilty, admissions made attendant thereto, and the admissions made in Jacob's deposition, an issue of material fact remains because the pleas and admissions are conclusory. They also point to Jacob's deposition wherein he stated that if the construction zone had not been so narrow, and the barricades had not been tied down, he could have avoided the accident. Jacob and Snyder further argue that other issues exist as to whether the car in front of Jacob was improperly stopped. They also argue the issue of whether the weather was a causative factor.

Summary judgment is appropriate only when the evidentiary material before the court shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. On appeal we are bound by that standard. Consolidated City of Indiana v. Cutshaw (1983), Ind.App., 443 N.E.2d 853, trans. denied. A summary judgment proceeding is not an abbreviated trial. Id. Factual issues are material when they bear upon the ultimate resolution of the case. Campbell v. Eli Lilly & Co. (1980), Ind.App., 413 N.E.2d 1054, trans. denied, 421 N.E.2d 1099. The burden is upon the proponent of the motion for summary judgment to demonstrate the lack of an issue of material fact, and any doubt is to be resolved in favor of the party opposing the motion. Bell v. Northside Fin. Corp. (1983), Ind., 452 N.E.2d 951; Rowe v. Small Business Admin. (1983), Ind.App., 446 N.E.2d 991, trans. denied.

Summary judgment is inappropriate if conflicting inferences can be drawn from the evidence before the court. Rowe, supra. It has been held that ordinarily, summary judgment is not the appropriate vehicle to determine a negligence case. Lambert v. Parrish (1984), Ind.App., 467 N.E.2d 791; Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688, trans. denied. Nevertheless, once the moving party has met his burden, the non-moving party may not rest upon his pleadings, but he must go forward with evidence to demonstrate that a genuine issue of material fact exists. Conard v. Waugh (1985), Ind.App., 474 N.E.2d 130. We first note that the fact that the lessee is liable, as we hold in Issue II infra, does not absolve the lessor. Simmons v. King (5th Cir.1973), 478 F.2d 857.

It was established that Jacob was the driver and an employee of both Snyder and Rediehs. The proceedings in the guilty plea hearing to the various criminal charges were factual. There, Jacob admitted to traveling at unsafe speeds in excess of 50 miles per hour upon entering a construction zone, where a speed limit of 35 miles per hour had been posted, and was unable to control his vehicle. From the terrible carnage wrought, inference can be drawn that the speed was greatly in excess of 50 miles per hour. He admitted his negligence. He admitted the causation. Maples have carried their burden.

Jacob and Snyder's argument is merely that negligence of others were contributing factors. It does not require citation of authority to show that where joint tort-feasors each by their separate acts of negligence contribute to an injury, the negligence of one is not a defense to the negligence of another.

Jacob and Snyder also argue that the trial court erred in considering evidence of Jacob's plea of guilty. They direct us to IND.CODE 34-3-18-1, enacted in 1982, which permits evidence of a final judgment, after a trial or upon a plea of guilty in felony cases, to be used in civil cases as proof of facts contained therein, and such judgment is not excludable as hearsay whether the declarant is available or not. Since the criminal recklessness charges are not felonies, they argue, such pleas were not admissible.

Indiana has long permitted pleas of guilty in all criminal cases to be used in civil cases, if appropriate and relevant, as an admission of a party against interest. Brattain v. Herron (1974), 159 Ind.App. 663, 309 N.E.2d 150. Under Indiana authority proof of conviction after a trial is not admissible because it is based upon hearsay or based upon the opinion of another trier. A plea of guilty, however, is an admission or a declaration against interest. It is our opinion that this rule was not restricted by IND.CODE 34-3-18-1, but the statute merely enlarges upon it in felony cases. Any statement or admission against interest, wherever made, is admissible at trial. See 12 I.L.E. Evidence Sec. 131, 132 and 135 (1959); Karlson, 1982 Survey of Recent Developments in Indiana Law--Evidence, 16 IND.L.REV. 191, 194. Authorities cited by Jacob and Snyder concerning prior testimony of non-party witnesses are not in point.

We hold that the court correctly entered summary judgment against Jacob and Snyder.

Issue II. Liability of Rediehs.

As noted in the Statement of Facts, some evidence may exist, though conflicting, that Jacob and Snyder may have been embarked upon an enterprise of their own at the time of the wreck, without Rediehs' knowledge and consent. However, during this enterprise they were still operating within the term of the lease which was carried in the tractor, and they were still carrying Rediehs' identification decal and ICC number. No receipt had been executed terminating the lease and evidencing re-delivery of the equipment to the lessor. The trial court held that by authority of certain ICC regulations and certain federal and state court cases, Rediehs would be liable for any negligence of Jacob whether he was acting within the scope of the lease or not. Rediehs argues that Maples can recover from it only if they prove that Jacob and Snyder were acting on Rediehs' behalf under the lease at the time of the wreck. Since there was some evidence that they were not so acting, summary judgment, it argues, was inappropriate.

Two divergent lines of authority exist concerning liability of carrier-lessees, like Rediehs, where the owner-driver lessor, while operating...