State v. Totty, 1-1179A301

Citation423 N.E.2d 637
Case DateJuly 21, 1981
CourtCourt of Appeals of Indiana

Linley E. Pearson, Atty. Gen., Thomas R. Hamill, Deputy Atty. Gen., Indianapolis, for appellant.

Donald Forrest, New Albany, for Donald Totty.

Michael G. Naville, Naville, Leist & Naville, New Albany, for Tommy L. Jenkins.

Basil H. Lorch, III, Lorch & Lorch, New Albany, for Loretta Carol Graf.

NEAL, Presiding Judge.


This is an appeal by the State of Indiana from judgments entered in the Floyd Circuit Court (1) in favor of Donald D. Totty (Totty) for personal injuries, (2) in favor of Loretta Carol Graf, Administratrix of the Estate of Dennis A. Graf, Deceased (Graf), for wrongful death, and (3) in favor of Tommy L. Jenkins, Executor of the Last Will and Testament of Sue Ann Jenkins, Deceased (Jenkins), for wrongful death. The judgments, after a trial by jury, grew out of a motor vehicle collision on U.S. 150 in Floyd County on October 27, 1972.


The facts most favorable to the verdict are as follows: U. S. Highway 150 is a highway under the control of the State of Indiana. At the point of the collision at the west edge of Galena, in Floyd County, it is a two lane highway which curves to the right on a down grade as it leaves Galena in a westerly direction. The speed limit west of the point of the collision at that time was 65 m.p.h. and east of the point, 40 m.p.h. The road was marked with a double yellow line indicating a "no passing" zone in either direction, but no "slippery when wet" signs existed in the vicinity of the point of the collision. The asphalt surface of U.S. 150, while not having been entirely resurfaced, had been extensively patched in August of 1972, and had become thereafter very slick when wet. Witnesses testified that when the road was wet vehicles had a tendency to slide, and because of this condition they had even altered their driving habits on this section of road. A school bus driver testified that prior to the accident his bus slid on the curve in question in the rain; he notified employees of the highway department of this fact and suggested that something should be done. One Una Hartfield testified that approximately two weeks after the patching operation her car had slid on the road. She notified the highway department at New Albany by phone of her experience, and thereafter the highway department attempted, but failed, to alleviate the problem by sanding the road. One witness characterized the road as "a sheet of glass" when wet. At the scene of the wreck some vehicles slipped and slid, and a fire truck, called to the scene, simply slid off to the low side of the road. The State's tests, made prior to the wreck, as well as

tests later performed by plaintiff's expert witness, William Tonn, revealed abnormal slickness

On the afternoon of October 27, 1972, a tractor-trailer owned by T.I.M.E.-DC, Inc. (T.I.M.E.) was being driven eastward in the rain by James Erwin. He was accompanied by Totty, an assistant driver, and was approaching Galena from the west on U.S. 150. As the truck proceeded up the grade and around the curve to the left at approximately 40 m. p. h., it slid on the rain-slick road from the east bound, high side of U.S. 150, across the center line to the low, west bound lane, and into the two cars being driven westward by the decedents of Graf and Jenkins, causing their deaths. Totty was thrown from the cab of the truck and injured.

Totty filed his complaint for damages for personal injuries on September 18, 1974, alleging negligence in design, construction, and repair of U.S. 150 at the scene of the wreck. On October 18, 1974, Graf and Jenkins filed their joint motion to intervene as plaintiffs, seeking damages for the wrongful death of their respective decedents, alleging in their complaints negligence in maintenance, a missing speed sign, and negligence in design, in that the road was too steep. The trial court permitted Graf and Jenkins to intervene.


The State presents six issues for review, as follows:

I. Did the trial court err in failing to grant the State's motion for summary judgment against Graf and Jenkins, and further err in failing to grant the State's motion for a judgment on the evidence at the close of all the evidence, which various motions were based on release agreements executed by Graf and Jenkins to T.I.M.E.;

II. Did the trial court err in permitting William Tonn, an engineer not admitted to practice in Indiana, to testify, the sole objection to his qualifications being that he was not admitted to practice in Indiana;

III. Did the trial court err in admitting plaintiff's exhibits N, O, and P;

IV. Did the trial court err in allowing Graf and Jenkins to testify regarding the circumstances of the execution of release agreements executed by them to T.I.M.E. regarding their respective intent and understanding of the terms of the release;

V. Did the trial court err in giving plaintiff's instructions Nos. 1, 2, 4, 7, and 10; and

VI. Sufficiency of the evidence.

Issues I and IV. Release of Joint Tort Feasors

The State's motions for summary judgment and the supporting materials which were filed therewith, and were later presented as evidence at the trial, disclosed that Graf and Jenkins had previously filed separate suits for the wrongful death of their respective decedents on account of the wreck in issue here in the United States District Court for the Southern District of Indiana against T.I.M.E., alleging the negligent operation of the truck as the cause of their decedents' deaths. These causes of action were settled, and stipulations of dismissal alleging "full settlement" were filed in court. The District Court found that the causes had been fully compromised and settled and ordered the cases dismissed with prejudice. On the date of the settlement, June 22, 1974, Graf and Jenkins executed releases to T.I.M.E. in consideration of $60,000 and $75,000, respectively. The documents show that the parties intended thereby

"(to) release, acquit and forever discharge T.I.M.E.-DC, Inc., its heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable, or who might be claimed to be liable, of and from any and all actions, causes of action, claims, demands, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from an accident that occurred on or about the 27th day of October 1972 at or near U. S. Highway 150 at a point approximately .05 miles west of the limits of the Town of Galena, Floyd County, Indiana."

No reservation of any cause of action was contained in the releases. Totty filed his complaint on September 18, 1974. Graf and Jenkins petitioned to intervene on October 18, 1974.

The State first raised the issue of the release of joint tort-feasors by a motion for summary judgment against Graf and Jenkins filed on July 10, 1975. The motion was overruled. The issue was stated in the pretrial contentions filed by the State pursuant to the pretrial order. Subsequent motions for summary judgment raising the issue of the release were filed by the State on June 11, 1979, the first day of the trial, prior to the commencement thereof. The issue was litigated with the evidence, as stated above, being admitted at the trial. The State moved for a judgment on the evidence at the close of Graf's and Jenkin's case-in-chief, and again at the close of all of the evidence, raising in those motions the issue of the release of joint tort-feasors. The motions were denied. The denial of the motion for summary judgment and the denial of the motion for judgment on the evidence at the close of all of the evidence were preserved in the motion to correct error and are assigned as error on appeal. The facts relative to the suits and releases are undisputed.

Dispositive of this issue is Bellew v. Byers, (1979) Ind., 396 N.E.2d 335, the operative facts of which are remarkably similar to those in the case at bar. In Bellew, supra, the three minor children of Virginia Bellew were injured while riding in a truck which was struck by a vehicle driven by James Nation, who had attempted to pass an Indiana National Guard truck driven by Randall Byers. A "Minor's Compromise of Claim" was approved in the Morgan Circuit Court for the settlement with Nation of any liability on his part arising out of the accident. Virginia Bellew, as guardian and pursuant to court approval, executed a general release upon the payment of $24,462.14. Subsequently an action was commenced by Virginia Bellew, as guardian, on account of the same wreck against Byers, the State of Indiana, the Indiana National Guard, and the Indiana State Highway Commission. The Supreme Court sustained the action of the trial court in granting a summary judgment to all defendants on the basis that the release of one joint tort-feasor released all.

The court stated:

"This Court has recently re-affirmed the longstanding rule of law that a release of one joint tort-feasor is a release of all. Cooper v. Robert Hall Clothes, Inc. (1979) Ind., 390 N.E.2d 155. The reasons for this rule are obvious. First, it prevents an unfair prejudice against the defendant by precluding the plaintiff from recovering in excess of his injuries by successively obtaining settlements from the various tort-feasors in return for releases. Second, joint tort-feasors 'constitute, in a sense, one entity, each of them being jointly and severally liable for injury to the...

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