Klukas v. Yount
| Decision Date | 11 April 1951 |
| Docket Number | No. 18103,18103 |
| Citation | 121 Ind.App. 160,98 N.E.2d 227 |
| Parties | KLUKAS v. YOUNT. |
| Court | Indiana Appellate Court |
Byron Emswiller, Albert Stump, Indianapolis, for appellant.
Ryan, Chester & Clifford, Valparaiso, for appellee.
This is an appeal from a judgment in favor of the appellee in an action to recover damages for personal injuries received by her in an automobile collision between a taxicab, wherein she was a passenger, and another automobile. Said taxicab was owned and operated by the appellant and said collision resulted from the alleged negligence of the appellant.
The issues were decided by the court, without the intervention of a jury, in favor of the appellee and against the appellant. The court below entered a judgment for the appellee and against the appellant in the sum of $3,000, with costs.
The error assigned and relied upon by the appellant for the reversal of this cause is that the court erred in overruling appellant's motion for a new trial, the specifications contained in said motion being:
(1) The decision of the court is not sustained by sufficient evidence.
(2) The decision of the court is contrary to law.
On appeal, when the sufficiency of the evidence is questioned, we do not weigh the evidence, but we examine the record to see if there is any evidence, or any reasonable or logical inference which may be drawn from the evidence, which if believed by the court would sustain the findings and decision of the court. Gamble v. Lewis, 1949, 277 Ind. 455, 85 N.E.2d 629; Butterfield v. Trittipo, 1879, 67 Ind. 338, 342; Indiana Ins. Co. v. Handlon, 1940, 216 Ind. 442, 24 N.E. 1003.
The record, when considered most favorable to the appellee, and with reasonable inference against the appellant, discloses that on June 9, 1949, at approximately 2:30 A.M., the taxicab owned and operated by the appellant was being driven in an easterly direction and approaching the intersection of the Peele road in Starke County, Indiana. An automobile owned and operated by James Lyle approached said intersection from the south, being driven north on said Peele road. The vehicles came in collision in the intersection and as a result of said collision the appellee sustained personal injuries.
The evidence further shows that the intersection at the side was overgrown with brush; that one could not see any distance; that the appellant did not see the lights of the other car until immediately before the crash; that he did not sound his horn; that the approached said intersection at 40 miles per hour and before arriving at the intersection there was to slackening of speed, nor were the brakes applied by the appellant, The appellant was well acquainted with the particular crossing, having traveled over the same from three to five times daily. The evidence shows the James Lyle car traveling 45 miles per hour.
The driving of the appellant into a known intersection where his view was greatly obstructed, without slackening his speed or applying his brakes, may have been considered by the court, under the circumstances, to have been acts of negligence.
The trial court, having the witnesses before it and having the right to judge the respective credibility and the inferences which it had a right to draw, could reasonably have found the appellant to have been guilty of one or more of the acts of negligence charged in the complaint.
The evidence further shows that the owner of the automobile traveling north carried insurance against public liability in the State Farm Mutual Automobile Insurance Company of Bloomington, Illinois; that a certain 'loan receipt' agreement was entered into by and between the State Farm Mutual Automobile Insurance Company and the appellee, said State Farm Mutual Automobile Insurance Company advancing and loaning to the appellee the sum of $2,500 in accordance with the terms of said loan agreement. Whereupon, the appellee was to institute suit against Henry Klukas for the purposes specified in said loan agreement and said loan was repayable only to the extent of her recovery.
Counsel for the appellant contends that the insurance company in the instant case is a necessary party-plaintiff as the real party in interest. Burns' Stat. § 2-201, provides as follows: 'Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.'
The question in this case is whether an insurance carrier may lend anyone who has suffered injury through the negligence of its insured an amount sufficient to cover his loss under an agreement that he will institute suit in his own name against the one causing the loss, or against another insurance carrier, and that he will be obligated to repay the loan only to the extent of his recovery in the suit; and whether such a transaction amounts to absolute payment or has the effect of satisfying such person's loss. Counsel states that there are no cases on this...
To continue reading
Request your trial
-
Northern Indiana Public Service Co. v. Otis
...a loan receipt agreement with a third party who has been injured by the alleged negligence of its insured. In Klukas v. Yount, 121 Ind.App. 160, 164, 98 N.E.2d 227, 229 (1951), this court 'The question in this case is whether an insurance carrier may lend anyone who has suffered injury thro......
-
Bolton v. Ziegler
...2d 971, appeal denied, 1942, 32 N.Y.S.2d 807; Simpson v. Hartranft, 1935, 157 Misc. 387, 283 N.Y.S. 754. Contra, Klukas v. Yount, 1951, 121 Ind.App. 160, 98 N.E.2d 227; National Shawmut Bank v. Johnson, 1945, 317 Mass. 485, 58 N.E.2d 849. Occasionally a loan receipt case involves two liabil......
-
State v. Thompson
...nor was it indemnity. Loan receipt agreements have been held valid in Indiana as early as the decision in Klukas v. Yount (1951), 121 Ind.App. 160, 98 N.E.2d 227. Since the decision in that case there has been a series of cases discussing, and approving, loan receipt agreements as a means o......
-
Tober v. Hampton
... ... 47, 75 N.W.2d 366. The rule reaches a transaction in which the lender is a putative tort-feasor or his insurer. See, Klukas v. Yount, 121 Ind.App. 160, 98 N.E.2d 227; Crocker [178 Neb. 881] v. New England Power Co. (Mass.), 202 N.E.2d 793 ... The ... ...