Burkett v. Crulo Trucking Co., Inc.

• Decision Date: 13 October 1976
• Docket Number: No. 1--975A154,1--975A154
• Citation: 171 Ind.App. 166,355 N.E.2d 253
• Parties: Lewis M. BURKETT, as Administrator of the Estate of Phillip E. Balay, Deceased, Plaintiff-Appellee, v. CRULO TRUCKING COMPANY, INC., Defendant-Appellant, George McMurry, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 253

355 N.E.2d 253

171 Ind.App. 166

Lewis M. BURKETT, as Administrator of the Estate of Phillip E. Balay, Deceased, Plaintiff-Appellee, v. CRULO TRUCKING COMPANY, INC., Defendant-Appellant George McMurry, Defendant-Appellee.

No. 1--975A154.

Court of Appeals of Indiana, First District.

Oct. 13, 1976.

John P. Price, David O. Tittle, Grace M. Curry, Bingham, Summers, Welsh & Spilman, Indianapolis, Ruel W. Steele, Steele, Steele & Steele, Bedford, for defendant-appellant.

James R. Cotner, Robert D. Mann, Cotner, Mann & Chapman, Bloomington, for plaintiff-appellee.

ROBERTSON, Chief Judge.

This is an appeal from a jury trial in a wrongful death action brought by plaintiff-appellee, Lewis M. Burkett (Burkett), against defendant, George McMurry (McMurry), and defendant-appellant, Crulo Trucking Company, Inc. (Crulo).

Plaintiff's decedent, Phillip E. Balay, died of injuries sustained on October 7, 1971, when the auto in which he was a passenger was struck from the rear by McMurry's dump truck as the auto was stopped in preparation for a left turn. The action for wrongful death, filed December 22, 1971, was brought against McMurry and Crulo on the theory that McMurry was negligent and that at the time of the accident McMurry was an agent or employee of Crulo and was within the scope of such agency or employment.

McMurry and Crulo had entered into a lease agreement whereby McMurry would lease the truck he owned to Crulo on a day to day basis for the purpose of transporting crushed stone and other materials for Crulo. McMurry had, on a semi-regular basis immediately before and after the accident, hauled materials for Crulo. Affixed to the truck at the time of the accident were the P.S.C.I. placards of another company for whom McMurry also sometimes hauled. The evidence most favorable to the verdict of the jury is that McMurry was, at the time of the accident, on his way to pick up a load of stone at the behest of Crulo.

McMurry denied liability but admitted the agency relationship in his answer filed February 11, 1972. He died November 21, 1972. Thereafter, on January 9, 1975, before the commencement of the trial on January 21, 1975, the following loan receipt agreement was executed by Burkett and by the attorney for McMurry and his successors.

LOAN AGREEMENT AND CONTRACTUAL PROMISES OF THE PARTIES TO THE LOAN

THIS CONTRACT OF AGREEMENT is made and entered into by and between LEWIS M. BURKETT, acting as Administrator of the Estate and for the heirs of Phillip Balay, deceased, (hereinafter called the 'Borrower') and GEORGE MCMURRY and the legal and fiduciary successors in interest to George McMurry, who is also deceased, (hereinafter called the 'Lender').

WITNESSETH:

WHEREAS, Charlene Balay, the widow of Phillip Balay, and Chaline, the late Phillip Balay's daughter, were both deprived of the financial support, care, love, companionship and attention of their husband and father, respectively, when he, at the age of twenty-five (25) years, was killed in an accident on October 7, 1971, on Old State Road No. 37 near Zikes Road in Monroe County, Indiana, that occurred while George McMurry, who was working and driving his huge stone truck all in the scope of his employment for his employer, Crulo Trucking Co., Inc., negligently drove same into the area of the automobile occupied by Phillip Balay that was stopped, preparatory to turning left off State Road No. 37 onto Zikes Road, knocking said auto one hundred five feet all the while crushing the car beneath it as it pushed it forward.

At the time of the accident, the car in which Mr. Balay was riding had its lights on and its left turn signal was working. Phillip Balay died with his wife at his side, five hours after the accident of a skull fracture and other injuries; and

WHEREAS, investigation and the facts discovered show that George McMurry at the time of the accident was acting within the scope of his employment for Crulo Trucking Company in that he was on his way to the Sieboldt quarry to pick up a load of stone to be hauled to the road construction site on new Highway 37. He was performing an essential part of the whole task which he was to perform for Crulo, i.e., traveling to the site where the load would be picked up and he was performing his job with Crulo as he had performed it in the past for them; and

WHEREAS, Lewis M. Burkett was appointed as Administrator of the Estate of Phillip M. Balay to collect legal damages, against those who wrongfully caused the death of Balay, for the benefit of his widow, orphan and all others entitled by law to receive damages on account of his untimely death; and, as such Administrator, the said Lewis M. Burkett has filed suit against the late George McMurry and the Crulo Trucking Co., Inc., who hired George McMurry under a truck lease agreement to do hauling work with McMurry's truck; and

WHEREAS, the lawsuit against McMurry and Crulo Trucking Co., Inc. was filed to collect Three Hundred Thousand Dollars ($300,000.00) damages against them, a just and appropriate sum, jointly and severally, based partially on the facts that at the time of his unfortunate death, Phillip Balay was in good health, had missed little or no work due to illness or disability, had recently served five years with the Indiana National Guard, was an experienced heavey equipment operator, with annual earnings of approximately Ten Thousand Five Hundred Dollars ($10,500.00) per year. The present value of the support which would have been furnished by Phillip Balay to his widow and daughter is in excess of Two Hundred Seventy-five Thousand Dollars ($275,000.00). This figure also does not take into account the loss of Phillip Balay's companionship, love, and guidance to his wife and infant daughter.

WHEREAS, by law in the State of Indiana and under the doctrine of 'respondeat superior,' the master or principal in this case, Crulo, is chargeable with, and liable for, any negligent act committed by its agent or servant, in this case, McMurry, while such agent or servant is acting in the scope and course of his employment. In such cases both master and servant (Crulo and McMurry) are liable for any injury or damages caused by such negligence, and either or both may be sued therefor at the option of the injured party. Furthermore, when both employer and employee are sued by the injured party, an agreement by one of the defendants in this case, McMurry with the injured party does not bar the continuance of the action by the injured party against the other defendant, Crulo, when the compensation paid in the agreement, as in this case, is less than the full amount of loss suffered and compensation due on account of the injuries received.

WHEREAS, the Administrator has the right, guaranteed by law, to collect all damages included in any verdict jointly rendered against the said McMurry and Crulo Trucking Co., Inc. from whichever of said defendant parties the Administrator and his attorneys might select to enforce th execution of their judgment against, so that one of said parties might be compelled to pay the entirety of any joint judgment against them; and

WHEREAS, the lawsuit brought for the Balays is scheduled to be tried in the Lawrence Circuit Court at Bedford, Indiana, starting on Tuesday, January 21, 1975, by a jury to determine the amount of damages, and the legal liability and responsibility of the defendant McMurry and the defendant-employer of McMurry, Crulo Trucking Co., Inc. under proper instructions to be given by the Judge of the Court, with all proceedings therein subject to appeal and review by higher courts of the State of Indiana, which said trial and appeals might work an extreme delay in the receipt of any monies and funds to benefit the persons legally entitled to same on account of the wrongful and negligent death of Phillip Balay; and,

WHEREAS, the Borrower is in present need of funds and would like an assured sum certain in monies, without releasing or accepting any partial payment or satisfaction of the claims asserted in the litigation described, but desiring solely to contract away, in part, his right of execution and levy of execution against George McMurry or his legal fiduciary successor only, specifically reserving the right to collect through settlement or by execution and levy upon any judgment that is rendered against Crulo Trucking Co., Inc. whether joint or several, that includes it as a defendant judgment-debtor all sums which may be awarded up to and including the Three Hundred Thousand Dollars ($300,000.00) prayed for in said complaint, and for which said legal liability the Crulo Trucking Co., Inc. has liability insurance coverage of One Hundred Thousand Dollars ($100,000.00) with the North River Insurance Company in Policy No. GA 61 30 95; and,

WHEREAS, by reason of the negligence of George McMurry, for which Crulo Trucking Co., Inc. as his employer is liable, the plaintiff has been damaged, and there is due adequate compensation for the death of Phillip Balay, and that a review of other verdicts in similar death cases show that a verdict of between One Hundred Thirty Thousand Dollars ($130,000.00) and Three Hundred Thousand Dollars ($300,000.00), in all likelihood, should be returned in favor of the plaintiff as Administrator of the Estate of Phillip Balay for the benefit of widow and infant daughter, and,

WHEREAS, Lender realizes that it is impossible to predict what decision might be rendered by a jury but it is also realized that the damages resulting from the accident could and probably will result in a jury verdict against Crulo Trucking Co., Ind. and George McMurry in an amount in excess of Eighty-five Thoursand Dollars ($85,000.00) and up to Three Hundred Thousand Dollars ($300,000.00) as prayed for in said complaint; and

WHEREAS, the insurance company of George McMurry is liable only to the extent of its policy in the amount of One Hundred Thousand Dollars ($100,000.00) and no estate...