Mercer Cas. Co. of Celina, Ohio v. Kreamer
| Decision Date | 22 November 1937 |
| Docket Number | 15567. |
| Citation | 11 N.E.2d 84,105 Ind.App. 358 |
| Parties | MERCER CASUALTY CO. OF CELINA, OHIO. v. KREAMER. |
| Court | Indiana Appellate Court |
Eggeman Reed & Cleland and Flanagan & Murphy, all of Fort Wayne, for appellant.
Barrett Barrett & McNagny, Leigh L. Hunt, Mentor Kraus, and J. A Bruggeman, all of Fort Wayne, for appellee.
This action was brought by appellee against the Mercer Casualty Company by an amended complaint alleging that Alline Kreamer by her next friend, Harvey Kreamer, recovered judgment by default against Herbert Weikel in an action in the superior court of Allen county, Indiana, on February 24, 1934, in the sum of $2,500 and costs; that on August 1, 1934, execution was issued on said judgment and returned unsatisfied; that no part of said judgment has been paid; that Weikel is insolvent; and that the Mercer Casualty Company was the insurer on the automobile which was being driven by Weikel at the time Alline Kreamer was injured, for which injuries she obtained the judgment hereinabove mentioned. To this complaint defendant answered in general denial, and on the issues thus formed trial was had before a jury, resulting in a verdict for plaintiff in the sum of $2,625.25 plus interest at 6 per cent. from March 11, 1935. Motion for new trial was overruled and judgment was entered according to the verdict.
This appeal followed, and the error assigned is that the court erred in overruling appellant's motion for new trial; the grounds that are properly presented being that the verdict of the jury (a) is not sustained by sufficient evidence, (b) that it is contrary to law, and (c) that the court erred in giving and reading each of the instructions numbered 2, 3, and 3 1/2.
The evidence discloses that Richard D. Graber, as administrator of the estate of A. W. Graber, transferred on sale, by order of court, the title to an automobile belonging to said estate to Mary Macey, whom he was engaged to marry; that at that time said automobile was insured in the Mercer Casualty Company; that Richard D. Graber explained to the agent of that company that he (Graber) had purchased the automobile but had placed the title in Mary Macey and asked if it was necessary to buy a new policy to insure the automobile or whether the old one could be transferred, and the agent said that if a clear title to the automobile could be shown the old policy could be transferred. Thereupon the policy in appellant company then on said automobile was transferred to Mary Macey. Said Graber and Mary Macey had an agreement in reference to the automobile "that either of us would leave the other allow any person to drive the automobile that we thought was competent, and that is the only understanding we ever had as to how it would be used and operated," and at the time Mary Macey last left the automobile in Graber's possession, before the accident, she gave him no instructions as as to how he should use the automobile and placed no restrictions upon the use thereof and "it was perfectly alright that he should use it any way he wanted to."
On May 6, 1932, Graber, who had possession of the automobile, drove to his work with Weikel; that on arriving at his destination about 3:00 o'clock p. m. he told Weikel, his cousin (who was an adult member of his household and not his domestic servant), to have the automobile washed and return for him (Graber) at 11:00 o'clock p. m. Graber at the time he turned the automobile over to Weikel placed no restrictions whatsoever on the use of the automobile by Weikel, except that he was to call for Graber at the designated time. During the time Weikel had the use of the automobile, Alline Kreamer, who was riding in the automobile as his guest, was injured when the accident occurred.
The evidence further discloses that after the accident representatives of the Mercer Casualty Company called at the home of Alline Kreamer and one of them asked how much the doctor and hospital bill would amount to, and when he was informed that that was not yet known, he said that when that amount was determined everything would be taken care of and all the bills would be paid. Later the representative informed the parents of Alline Kreamer that the insurance company had refused to make any settlement of their claim and that if the parents wanted to go any further they should engage an attorney.
It further appears that the repairs to the automobile were paid for by the Mercer Casualty Company and that Mary Macey signed the release and in the sworn proof of loss said that she was the owner of the automobile.
Appellant first questions the sufficiency of the evidence as to whether...
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Arnold v. State Farm Mutual Automobile Ins. Co.
...797. 3 1942, 111 Ind.App. 19, 39 N.E.2d 493. 4 1946, 224 Ind. 483, 69 N.E.2d 19. 5 1942, 225 Ind. 559, 76 N.E.2d 562. 6 1937, 105 Ind.App. 358, 11 N.E.2d 84. 7 Supra, Note 8 1942, 225 Ind. 559, 76 N.E.2d 562. The case has a rather illuminating history in the Indiana appellate court system. ......
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Arnold v. State Farm Mutual Automobile Ins. Co.
...This was consistent with an earlier holding of the Appellate Court of Indiana in Mercer Casualty Co. of Celina, Ohio, v. Kreamer, 1937, 105 Ind. App. 358, 11 N.E.2d 84. Thus, it seems quite clear to us that, under Indiana law, where the policy in suit contains an omnibus clause, the coverag......
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