Landers v. McComb Window & Door Co.

• Decision Date: 23 June 1969
• Docket Number: No. 768A124,No. 2,768A124,2
• Citation: 248 N.E.2d 358,18 Ind.Dec. 72,145 Ind.App. 38
• Parties: Forrest LANDERS, Appellant, v. McCOMB WINDOW AND DOOR CO., Inc., a Corporation, Appellee
• Court: Indiana Appellate Court

Page 358

248 N.E.2d 358

145 Ind.App. 38

Forrest LANDERS, Appellant, v. McCOMB WINDOW AND DOOR CO., Inc., a Corporation, Appellee.

No. 768A124.

Appellate Court of Indiana, Division No. 2.

June 23, 1969.

Rehearing Denied July 23, 1969.

Richard H. Crokin, Indianapolis, for appellant; Robert Parr, Lebanon, Frazier & Crokin, Indianapolis, of counsel.

Keith C. Reese, John W. Donaldson, Rocap, Rocap, Reese & Young, Indianapolis, for appellee.

SHARP, Judge.

This was an action for personal injuries commenced by the Plaintiff-Appellant Forrest Landers, against the Defendant-Appellee, McComb Window and Door Co., Inc., and other Defendants. The Defendant, Broady, Edwards, Campbell & Tarrant, Inc., was dismissed on motion of the Plaintiff-Appellant, which dismissal was on the first day of the trial. The original complaint was filed March 13, 1967 and alleged specific acts of negligence as to the various defendants named therein. The Defendant, McComb Window and Door Co., Inc., filed its answer in three legal paragraphs to the Plaintiff's complaint on April 24, 1967. The first paragraph of its answer was in denial, the second paragraph of its answer alleged the defense of assumption of risk and the third paragraph of its answer alleged the defense of contributory negligence. On January 22, 1968, the cause was called for trial and prior to the selection of the jury the Appellant dismissed the Defendant, Broady, Edwards, Campbell & Tarrant, Inc. On January 22, 1968, and subsequent to the dismissal of the Defendant, Broady, Edwards, Campbell & Tarrant, Inc., the Defendant-Appellee, McComb Window and Door Co., Inc., filed additional paragraphs of answer, which read as follows:

'The defendant, McComb Window and Door Co., Inc., a Corporation for Fourth Paragraph of Answer to Plaintiff's Amended Complaint, says:

1. That the plaintiff herein has fully settled and compromised this cause of action by means of settling with and fully releasing by means of an unconditional release Broady, Edwards, Campbell and Tarrant, Inc., a Corporation, a former defendant in this cause and an alleged joint tort feasor.

2. Said release of said Broady, Edwards, Campbell and Tarrant, Inc., a Corporation, is a bar to plaintiff's recovery herein against this defendant.

3. This defendant is without information as to the exact terms of said release but alleges that it was founded on a valuable consideration, the amount unknown, and does not know whether or not said release was written or verbal but plaintiff has full knowledge in that regard. The defendant avers that said release by its terms pertain to and embrace the matters in controversy in plaintiff's Amended Complaint for Damages.

WHEREFORE, the defendant, McComb Window and Door Co., Inc., prays that plaintiff take nothing by his Amended Complaint and for all other necessary and proper relief in the premises.

V.

'The defendant, McComb Window and Door Co., Inc., a Corporation, for Fifth Paragraph of Answer to plaintiff's Amended Complaint, says:

1. Plaintiff herein has entered into an agreement with Broady, Edwards, Campbell and Tarrant, Inc., a Corporation, a former defendant in this cause, and the plaintiff has received by the terms of said agreement valuable consideration.

2. The terms of said agreement between plaintiff and Broady, Edwards, Campbell and Tarrant, Inc., a Corporation, are unknown in detail to this defendant, but, if said agreement is other than a complete bar to plaintiff's action then this defendant will be entitled to said amount of consideration so paid by way of mitigation of damages if any the plaintiff is entitled to against this defendant, which this defendant denies.'

The Appellant filed Reply to such additional paragraphs of answer, which reads as follows:

'Comes now the Plaintiff and for reply to the allegations of the Fourth Paragraph of the Answer filed by Defendant McComb Window and Door Co., Inc., and the Fifty Paragraph of the Answer filed by Defendants Martin J. Lynch and William Lynch, alleges and states as follows:

1. Plaintiff denies the allegations of Paragraph One.

2. Plaintiff denies the allegations of Paragraph Two.

3. Plaintiff admits that he has dismissed from this cause the Defendant Broady, Edwards, Campbell and Tarrant, Inc., that such Defendant is no longer a party to this suit, and that such Defendant has agreed to pay to Plaintiff, in consideration of Plaintiff's dismissal of the claim asserted against such Defendant the sum of Two Thousand Five Hundred ($2,500.00) Dollars. Plaintiff denies that he has executed, intends to execute, or has agreed to execute any release of any nature as to Broady, Edwards, Campbell and Tarrant, Inc., or as to any other party, and further avers that such dismissal and promise of payment were not intended by the parties thereto to effect a full or complete settlement and satisfaction of Plaintiff's claim and cause of action against any party or parties other than Broady, Edwards, Campbell and Tarrant, Inc.

'Comes now the Plaintiff and for reply to the allegations of the Fifth Paragraph of the Answer filed by McComb Window and Door, Inc., and the Sixth Paragraph of Answer filed by Defendants Martin J. Lynch and William Lynch, alleges and states as follows:

1. Plaintiff realleges the allegations of rhetorical paragraph three of his reply to Pleading Paragraph IV and V of these Defendants Answer.

2. Plaintiff admits that from the sums which Defendants McComb Window and Door Co., Inc., and Martin J. Lynch and William Lynch are found to owe to Plaintiff, as a result of the accident and injuries set forth in Plaintiff's complaint, such Defendants are entitled to a credit of Two Thousand Five Hundred ($2,500.00) Dollars.'

The case proceeded to trial and the jury rendered verdict for the Appellant-Plaintiff in the sum of $30,000.00 upon which the trial court entered judgment. The Appellee, McComb Window and Door Co., Inc., filed a Motion for New Trial, which contended that the verdict of the jury was contrary to law, that the trial court erred in overruling the motion of the Defendant made at the close of all of the evidence to instruct the jury to render a verdict for the Defendant, and erred in refusing to direct a verdict for the Defendant at the close of all of the evidence. On May 2, 1968, the trial court sustained Appellee's Motion for a New Trial and entered the following order:

'Comes now the Court and having heard oral argument on the motion of defendant, McComb Window and Door Co., Inc., for new trial heretofore filed with memorandum in support thereof, and upon plaintiff's memorandum in opposition thereto, now sustains said motion in the following specifications to-wit:

Specification 3. The verdict of the jury is contrary to law.

Specification 8. Error of law occurring at the trial in that the Court erred in overruling the motion of the defendant, made and filed in writing, at the close of plaintiff's evidence and made and files in writing at the close of all the evidence in the case, to instruct the jury to return a verdict for said defendant and in refusing to direct a verdict for said defendant at the close of plaintiff's evidence and at the close of all the evidence.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, by the Court, that the verdict of the jury heretofore returned and filed on January 26, 1968, and the judgment of the Court entered thereon be set aside and held for naught; and this cause is now assigned for trial by jury the 30th day of September, 1968.

MEMORANDUM

The Court bases its above ruling on the following excerpts from the record:

Q. I'm sorry, maybe it would be quicker if I would do it over again. Mr. Landers, did you decide to dismiss this lawsuit against Broady, Edwards, Campbell & Tarrant, Inc.?

A. Yeh.

Q. And when did you do that, Sir?

A. Monday.

Q. That's this last Monday?

A. Yes, Sir.

Q. And did you receive or have you agreed to accept money from Broady, Edwards, Campbell & Tarrant, Inc. in consideration of that dismissal?

A. Yes, I guess.

Q. Well, I want to be sure you understand when you say you guess. You mean you did agree to accept some money from them or you did not?

Do you understand me?

A. Yeh.

Q. You did agree to accept money from them?

A. Yeh.

Q. In return for a dismissal, is that right?

A. Yeh.

Q. And how much?

A. $2500.00.

Q. $2500.00?

A. Yes.

Q. Is that right?

A. Yeh.

Q. Now, have you signed any documents dismissing or releasing Broady, Edwards, Campbell & Tarrant, Inc.?

A. No, Sir, I haven't.

Q. Do you intend to?

A. I don't know.

Q. Was it your understanding of this agreement with that firm, Broady, Edwards, Campbell & Tarrant, Inc., that you were releasing them?

A. Yes, Sir.

Q. Mr. Landers, in one of Mr. Reese's question to you, he used the word 'release' with respect to Broady, Edwards, Campbell & Tarrant, have you signed or agreed to sign or have any knowledge of believing you were going to sign anything in the nature of any document whatsoever with respect to the dismissal of Broady, Edwards, Campbell & Tarrant from this lawsuit?

A. I haven't.

Q. Has anybody told you that you ought to sometime in the future?

A. No.

Q. And so far as you are concerned, you through Mr. Parr and I, as your attorneys, simply dismissed them from this suit?

A. That's right.

Contrary to plaintiffs statement in the memorandum in opposition, on Page 4, that 'plaintiff further testified * * * did not accept said payment in full satisfaction of all his claims and injuries arising out of the accident', the Court finds nothing in the record explaining any release except that quoted above.

It is the Court's opinion that Indiana still adheres to the old common law principal as most recently stated in Bedwell v. DeBolt (1943), 221 Ind. 600, 50 N.E.2d 875, that the unconditional release of one joint tort feasor releases all. It is only where there is a conflict in the evidence as to whether such 'release' is in full satisfaction, is a covenant not to sue, or is a conditional release,...