Sims Motor Transport Lines v. Davis
| Decision Date | 17 November 1955 |
| Docket Number | No. 18626,18626 |
| Parties | SIMS MOTOR TRANSPORT LINES, Inc., Appellant, v. Josephine H. DAVIS, Administratrix of the Estate of John Max Davis, Deceased, Appellee. |
| Court | Indiana Appellate Court |
Raymond F. Hayes, Chicago, Ill., Montgomery & Montgomery, Seymour, for appellant.
James R. Regester, Regester & Regester, Bloomington, Branaman & Market, Thomas H. Branaman, Brownstown, for appellee.
Appellee instituted this action in the lower court for damages for breach of contract as a result of the alleged failure of appellant to procure insurance upon the life of John Max Davis, hereafter referred to as the decedent, against death or bodily injury.
Decedent owned his own tractor and leased a trailer from appellant. He paid the expenses of operating the tractor and for his compensation therefor received 75% of the amount collected for freight hauled, less one-half of 1% which appellee claimed was deducted for insurance for death or bodily injury, while the appellant maintains that the deductions were for workmen's compensation insurance. While so-working, decedent was killed in a collision with another truck. His widow was duly appointed the Administratrix of his estate. Damages were recovered by appellee against the owner of the other vehicle for decedent's death in the sum of $13,000.
Appellant's answer to the paragraph of complaint upon which the action was submitted to the jury was to the effect that appellant never agreed to procure any insurance on decedent except workmen's compensation insurance, which it did, and that appellee elected to sue the owner of the other truck involved in the collision, thus waiving any rights under the Workmen's Compensation Act.
Trial by jury resulting in a verdict and judgment in favor of appellee for $9,500, of which amount $1,000 was remitted by appellee.
Appellant's motion for new trial alleged that the verdict is not sustained by sufficient evidence and is contrary to law, excessive damages and error in the assessment thereof, they being too large, error of law in the court's refusing to permit appellant's witness to explain the meaning of the initials, and on work-slips, error of law in the court's refusing to give peremptory instructions tendered by the appellant, instructing the jury to return a verdict in its favor, error of law in the court's giving to the jury plaintiff's tendered instruction number six. The motion also alleges error of court in refusing to give tendered instruction number eight. This is waived on account of failure to argue or brief that particular point.
The Assignment of Error is the overruling of the motion for new trial.
The question proposed is, was there an agreement on the part of the appellant to procure insurance other than workmen's compensation insurance upon the life of the decedent?
Evidence which the jury considered in arriving at its conclusion as to whether or not such an agreement existed and whether or not decedent's estate had been damaged briefly is as follows: Decedent began hauling for appellant April 10, 1950, and continued until his death, December 11, 1951; appellant never furnished proof to appellee's estate that they had in force insurance of the kind mentioned upon decedent's life. After decedent's death, there were several conversations between the widow and Mr. Goode, appellant's Bloomington manager, in which Mr. Goode advised the widow that he knew the company had plenty of insurance on decedent in the sum of $8,500, and instructed her to bury him any way she desired; that he did not have the policy, but that he had one in Chicago at the main office, whereupon the Administratrix, her counsel and an office employee of appellant, went to the Chicago office to see the policy. Mr. Sims, President of appellant company, showed two policies, one of which was purchased after decedent's death, and the other a workmen's compensation policy. The counsel inquired of Mr. Sims as to what Mike Davis got for his money, to which Mr. Sims replied in effect he guess he got nothing and he thought the money should be returned. A check thereafter was tendered by appellant company for $200 marked 'Insurance Paid in Advance', which was refused by the Administratrix.
The Administratrix testified that when Mr. Goode spoke of $8,500 worth of insurance that he did not tell her that it was workmen's compensation insurance but stated that the appellee administratrix would get $8,500; that he was sure of that, but for each dependent, he could not say.
At decedent's death, he was 33 years of age.
During the period of the working arrangement, no tax or assessment was paid on the life of decedent for social security. There was evidence that the company did not collect social security from owner-operators since they were working for themselves, they being contractors.
Mr. Goode, the manager, testified that he thought at the time of decedent's death that he was covered and that the deductions from the amounts owing by appellant to decedent were made as a part of the business arrangement between appellant and Mr. Davis in that the insurance was to be procured through the Chicago office and no one else. Witness further stated that if there was any insurance coverage carried by appellant upon decedent's life at the time of his death, it could not have been workmen's compensation because decedent was not an employee.
The insurance carrier of appellant company wrote appellee's counsel as follows:
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