Sinclair Refining Co. v. McCullom

• Decision Date: 22 January 1940
• Docket Number: 16188.
• Citation: 24 N.E.2d 784,107 Ind.App. 356
• Parties: SINCLAIR REFINING CO. v. McCULLOM et al.
• Court: Indiana Appellate Court

24 N.E.2d 784

107 Ind.App. 356

SINCLAIR REFINING CO. v. McCULLOM et al.

No. 16188.

Appellate Court of Indiana, in Banc.

January 22, 1940

Gavit Hall, Smith & Gavit, of Whiting, for appellant.

Tinkham & Tinkham, of Hammond, for appellees.

LAYMON Judge.

Appellee James McCullom sought by this action to recover damages alleged to have been occasioned by the acts and conduct of appellee George Zorich and appellant, Sinclair Refining Company.

The complaint was in one paragraph and, omitting the formal parts, is as follows:

"That heretofore, and on the 28th day of July, 1936, the defendant, George Zorich, caused to be filed in the Clerk's Office of the Lake Superior Court, sitting at Hammond, Indiana, his certain complaint against this plaintiff under Cause No. 47012 of said court and wherein, the defendant, Sinclair Refining Company, a corporation, was made co-defendant with this plaintiff; that said cause of action is still pending and this plaintiff and his co-defendant, Sinclair Refining Company, have been duly served with process to appear to said action on the 15th day of September, 1936.

"That said complaint alleges that this plaintiff, James McCullom, one of the defendants named therein, is indebted to George Zorich, the plaintiff in said cause and one of the defendants herein, in the sum of twenty-one and 19/100 Dollars ($21.19) for board, lodging and entertainment, all of which is now due, owing and unpaid; that said plaintiff made a demand on said defendant for said amount due but that the defendant failed and refused to pay the same; that the defendant, Sinclair Refining Company is made a defendant thereto for the purpose of answering as to what, if any amount it may have in its hands belonging to the defendant James McCullom; that the prayer of said complaint is as follows: 'Wherefore, plaintiff prays the Court for a lien against the defendant, James McCullom's wages from the Sinclair Refining Company, in the sum of Twenty-five Dollars ($25) and for all other, further and proper relief.'

"The plaintiff herein further alleges that the indebtedness sued upon in the above described complaint, filed in said cause No. 47012, was contracted for the purchase from the defendant, George Zorich, of milk, candy and cigarettes for the use of his family and himself at various times during the months of April, May and June, 1936; that the defendant, George Zorich, extended credit to this plaintiff for such merchandise; that during said period, he was and still remains a resident householder of the State of Indiana, his household consisting of his wife, one child and himself; that at no time during said period, nor at any other time, did he or any member of his family board or lodge with said defendant, George Zorich, and neither did he nor any member of his family enjoy entertainment from said defendant, George Zorich, as contemplated in the so-called 'Innkeepers' Law' of the State of Indiana, and that none of said indebtedness was incurred for board, lodging or entertainment; that said allegation in the said complaint of the defendant, George Zorich, that said indebtedness was incurred for board, lodging and entertainment is entirely false. That said plaintiff was and still is unable to pay said indebtedness because of the small wages he received from said defendant, Sinclair Refining Company, for his labor on its behalf, and because of periodic illnesses during such employment.

"That at the time said defendant, George Zorich, filed his said complaint, as aforesaid, this plaintiff was and for a long time prior thereto had been, an employee of the defendant, Sinclair Refining Company, and as such employee, earned as wages, the sum of about thirty-five dollars ($35) for each two weeks period of such employment; that after the filing of said complaint and the service of process upon the defendant, Sinclair Refining Company, and by reason thereof, said company failed and refused to pay to this plaintiff the wages due him on August 20, 1936, for the two weeks immediately preceding; that thereafter, and on the 28th day of August, 1936, said defendant, Sinclair Refining Company, discharged this plaintiff from its employment because of the filing of such action by said defendant, George Zorich, and now fails and refuses to pay said plaintiff any wages earned by him since August 5, 1936, thereby depriving said plaintiff of necessary funds with which to support himself and family.

"That by reason of the false allegation in the complaint hereinabove described, filed by the defendant, George Zorich, to the effect that the indebtedness therein alleged was contracted for board, lodging and entertainment under what is known as the 'Innkeepers' Law' of the State of Indiana, said plaintiff has been greatly damaged in this, that his credit and standing in the community in which he lives and among his friends and acquaintances and creditors has been greatly injured to his personal embarrassment and that of his family; that since the filing of said complaint, he has been unable to procure credit for the necessary support of himself and family, all to their great chagrin and suffering; that at the time of the filing of said complaint by the defendant, George Zorich, this plaintiff was in the course of constructing a small home for himself and family and was depending upon his wages due on the 20th day of August, 1936, to buy the necessary building supplies to continue such construction but that because of the filing of said complaint and the failure and refusal of said defendant, Sinclair Refining Company, to pay him such wages on account thereof said plaintiff was deprived of the necessary funds to proceed with such construction, and that part which had been erected and the lumber and other supplies on the premises have been greatly damaged by reason of such inability to continue and complete said home; that the filing of such complaint has greatly injured his prospects for employment by other industries in the community, all to his further damage.

"And said plaintiff further alleges that said defendant, Sinclair Refining Company, knew or should have known by the exercise of reasonable care that the allegations of said complaint to the effect that the indebtedness therein sued upon was incurred for board, lodging and entertainment was wholly false; that it was the duty of said defendant, Sinclair Refining Company, to reasonably investigate the circumstances of said indebtedness and to properly and diligently determine its rights in the premises as well as the rights of this plaintiff, but that notwithstanding such duty, said defendant, Sinclair Refining Company, wrongfully withheld this plaintiff's wages and failed and refused and still fails and refuses to pay him such wages although long past due, and wrongfully discharged this plaintiff from its employment as aforesaid.

"And the plaintiff further alleges that even though the allegation of the complaint filed by the defendant, George Zorich, as hereinabove described, to the effect that the indebtedness sued upon was incurred for board, lodging and entertainment were true, yet said defendants and each of them knew or should have known, by the exercise of reasonable care, that the so-called 'Innkeepers' Law,' under the provisions of which said action was brought, as applied in said action to this plaintiff as a defendant

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