Barker v. Sumney

• Decision Date: 15 July 1960
• Docket Number: No. 2514.,2514.
• Citation: 185 F. Supp. 298
• Parties: William BARKER, Plaintiff v. Charles William SUMNEY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

185 F. Supp. 298

William BARKER, Plaintiff v. Charles William SUMNEY, Defendant.

No. 2514.

United States District Court N. D. Indiana, South Bend Division.

July 15, 1960.

Campbell, Livingston, Dildine & Haynie, Ft. Wayne, Ind., Byron C. Kennedy, Warsaw, Ind., for plaintiff.

Hunt & Suedhoff, Ft. Wayne, Ind., Jones, Obenchain, Johnson, Ford & Pankow, South Bend, Ind., for defendant.

GRANT, District Judge.

This is an action for personal injuries alleged to have been sustained by the plaintiff as a result of a May 13, 1958, rear-end collision between the defendant's semitractor and the plaintiff's farm tractor on U. S. Highway No. 30 near Warsaw, Indiana.

Subsequent to the institution of this action the defendant filed a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The defendant bases its Motion on the grounds that subsequent to the filing of this action the plaintiff entered into an agreement entitled "Covenant Not to Sue" with the Michigan Surety Company and Pennsylvania, Indiana and Illinois Motor Express, Inc., and Charles William Sumney. It is defendant's position that "the legal effect of the agreement is to render moot the substantial questions presented by the plaintiff's Complaint herein".

The agreement, in addition to denying agency or scope of employment as regards Pennsylvania, Indiana and Illinois Motor Express, Inc., contains other introductory "Whereas" clauses which are set forth below for purposes of clarity.

"Whereas thereafter and on the 2d day of January, 1959, the said William Barker filed an action for damages against the said Charles William Sumney in the United States District Court for the Northern District of Indiana, South Bend Division, and therein alleged and averred that the said Charles William Sumney at the time of said collision was the agent, servant and employee of said Steinman, Inc., Steinman Trucking, Inc., or Orville Steinman, and said Pennsylvania, Indiana and Illinois Motor Express, Inc., and

"Whereas Markel Service, Incorporated and American Fidelity and Casualty Company had issued a policy of insurance to said Steinman, Inc., Steinman Trucking, Inc., and Orville Steinman, covering the said tractor and trailer, which tractor the said Charles William Sumney was driving at the time of the accident aforesaid, and

"Whereas Michigan Surety Company, of Lansing, Michigan, had issued a policy of insurance to said Pennsylvania, Indiana and Illinois Motor Express, Inc., which policy was numbered C A 72678, and

* * * * * *

"Whereas the undersigned William Barker and the said Michigan Surety Company and Pennsylvania, Indiana and Illinois Motor Express, Inc., desire to set at rest the differences between them in the premises without in any manner prejudicing the right of said William Barker to proceed against the said Steinman, Inc., Steinman Trucking, Inc., or Orville Steinman, Markel Service, Incorporated and American Fidelity and Casualty Company, and

"Whereas the said William Barker has demanded and now demands a sum greatly in excess of that hereinafter mentioned as being paid by the said Michigan Surety Company and Pennsylvania, Indiana and Illinois Motor Express, Inc., to said William Barker * * *."

The Covenant then proceeds to settle the differences of the plaintiff and Michigan Surety Company; Pennsylvania, Indiana and Illinois Motor Express, Inc., and the defendant, Charles William Sumney, whereby plaintiff agrees that:

"I will never sue or bring any action of any kind or character whatsoever, or take any action directly or indirectly against the said Michigan Surety Company and Pennsylvania, Indiana and Illinois Motor Express, Inc., or either of them, their successors or assigns, or in any manner, demand, take, accept or receive directly or indirectly any monies or other assets of any kind from the said Pennsylvania, Indiana and Illinois Motor Express, Inc., and Michigan Surety Company other than the (amount omitted) for any injuries or damages, either to my person or property sustained in said accident, and I further agree that I will never cause or permit any suit to be brought against said Pennsylvania, Indiana and Illinois Motor Express, Inc., and Michigan Surety Company, or either of them, their successors or assigns, for the collection of any judgment which I may hereafter obtain against the said Steinman, Inc., Steinman Trucking, Inc., or Orville Steinman, or Charles William Sumney, for injuries or damages arising out of said accident and collision." (Emphasis supplied.)

The paragraph which immediately follows is the focal point of the defendant's pending Motion for Summary Judgment. It provides as follows:

"And In Further Consideration of said payment I, the said William Barker, for myself, my heirs, administrators, executors and assigns, hereby agree that I will never cause any execution to issue against Charles William Sumney on any judgment which I may obtain against him in the action aforesaid (the instant case) or attempt to collect said judgment from him provided that nothing herein contained shall in any manner prevent me from proceeding against the said American Fidelity and Casualty Company and Markel Service, Incorporated, or either of them, to collect any judgment that may be obtained by me against

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