dissenting.
I dissent. I am unable to join in the majority’s application of existing Indiana case precedent to the “Loan Receipt Agreement and Covenant Not to Execute” at issue in this cause.
The majority acknowledges the validity of Barker’s contention that the enforcement of the agreement effectively shifts the entire burden of the jury’s $50,000.00 verdict from Watkins and B & B Industries (and their insurer) to his shoulders That effect, the majority blithely explains, is authorized by the Supreme Court’s holding in American Transport Co. v. Central Indiana Ry. Co. (1970), 255 Ind. 319, 264 N.E.2d 64.
I do not dispute that the Court’s opinion in American Transport Co. supports the result reached by the majority. That result, however, imposes a manifest injustice upon joint tort-feasor Cole, who under existing Indiana law, has no right of contribution from his fellow joint tort-feasors, Watkins and B & B Industries. Jackson v. Record (1937), 211 Ind. 141, 5 N.E.2d 897; see also, 6 I. L. E. Contribution § 3, p. 331 (1958). Moreover, the readily-apparent ramifications of the majority’s application of case precedent to the facts before us are simply not consonant with the ends of justice. The upshot of the majority’s holding is to shift the entire pecuniary responsibility for the jury’s verdict to a fellow joint tort-feasor with lesser financial resources.
Under the terms of most loan receipt agreements, the tender of money to an injured party carries with it the possibility that no recoupment of the sum will occur. American Transport Co. v. Central Indiana Ry. Co., supra, at 67. Where the loan receipt agreement is executed after a verdict has been reached, however, much of the uncertainty of recoupment vanishes. At that point, two contingencies remain which could bar the potential recovery of the loan; (1) a successful appeal by the joint tort-fea-sor who is to bear the entire brunt of the jury’s verdict; and (2) the financial inability of that joint tort-feasor to satisfy the entire verdict. Both matters are much more susceptible to accurate prognosis than those questions which cloud the possibility of recoupment of a sum tendered as part of a pre-trial loan receipt agreement: (1) will the jury find the joint tort-feasor liable? and (2) if so, what is the amount of the verdict that the jury will return against the joint tort-feasor? Thus, in a pre-trial setting, the placement of a sum of money at an injured party’s disposal involves significant risk; in a post-trial setting, however, the act becomes a calculated risk — a matter of gamesmanship.
To play the game — to offer the damaged party a sufficiently attractive sum of money as part of a loan receipt proposition — re*973quires immediate access to funds. Absent that financial ability, a joint tort-feasor, under our present rules of law, faces the possible imposition of the entire pecuniary consequences of the cumulative effect of his and another’s negligence, without regard to his comparative degree of causation.
The result is antithetical to the public policy which has prompted judicial willingness to sanction loan receipt agreements. The loan receipt agreement has the desirable effect of providing a damaged party with much needed financial resources in the face of the prolonged and costly legal battle which oftentimes precedes redress. American Transport Co., supra, at 67. At the same time, in circumstances such as those before us, our existing rules of law make the loan receipt agreement a vehicle whereby one economic inequity is cured by the creation of another.
This questionable result calls for a re-examination of our present legal principles with respect to this case. Notwithstanding the trend among many jurisdictions to veer from the long-standing doctrine that no right of contribution exists between joint tort-feasors1, the abrogation of that rule would remove the incentive for a joint tort-feasor to enter into a loan receipt agreement — and thereby dry up a desirous source of funds for damaged parties. On the other hand, it is perhaps advisable that we question whether a post-verdict loan receipt agreement should remain an enforceable agreement under the laws of this state.
Post-judgment loan receipt agreements have been justified on the grounds that under Indiana law, a plaintiff is permitted to execute a judgment against only one of several joint tort-feasors. American Transport Co., supra. Regardless of the merits of that rule, its purposes are not served by a concomitant principle which makes a joint tort-feasor of greater economic resources more capable of avoiding execution. Moreover, the post-verdict loan receipt agreement has little of those qualities which make its counterpart, the pre-verdict loan receipt agreement, so attractive. While I do not doubt that a sudden post-verdict availability of funds may benefit a damaged party facing further delay in redress by virtue of a tort-feasor’s appeal, it is also true that the damaged party may have already endured an extended trial process wherein his economic condition was ignored. This is not to say that the post-verdict financial straits of an injured party does not deserve our concern; rather, it is to acknowledge that there is little to honor in a post-verdict loan receipt agreement. It is a vehicle whereby a well-financed joint tort-feasor can, based upon a calculated risk, endeavor to avoid execution and shift the economic consequences of his actions to his fellow joint tort-feasor of lesser financial resources.
I am unable to countenance that result.
. See Am.Jur.2d Contribution § 40, p. 59 (1965), and 60 A.L.R.2d 1377 (1958). The rule originated in 1799, when Merryweather v. Nixan (1799), 8 TR 186, 101 Eng.Reprint 1337 was decided. Generally, the rule is predicated on the theory that the law should not strive to adjust the burdens of misconduct for the benefit of a culpable wrongdoer. As explained in the above authorities, some states have abrogated the doctrine by statute, while others have created an exception to the doctrine in cases where the joint tort-feasors’ actions did not rise above ordinary negligence.