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Tyre v. Andrews

Superior Court of Delaware, Sussex County

April 21, 1954

TYRE et al.
v.
ANDREWS et al.

Action by automobile owner and his insurer for damage to automobile allegedly resulting from negligence of male defendant who was at that time a minor and whose driver's license application had been signed by the other defendant, his mother. The Superior Court, Herrmann, J., held that automobile insurer could acquire no subrogation rights until it made payment for insured's loss; and insured having executed and delivered valid general release to defendants prior to receipt of payment of loss from insurer, neither insured nor insurer could thereafter recover fom defendants.

Judgment for defendants.

Page 776

Action for property damage arising from the negligence of the defendant, Joseph W. L. Andrews.

Samuel R. Russell, of Tunnell & Tunnell, Georgetown, for plaintiffs.

Caleb M. Wright, Georgetown, for defendants.

HERRMANN, Judge.

This cause having come on for trial before the Court, trial by jury having been waived by the parties, and the evidence adduced by the parties having been duly considered, the Court makes the following:

Findings of Fact

1. On February 14, 1953, the defendant Joseph W. L. Andrews operated the automobile of the plaintiff Harvey Tyre [48 Del. 391] without Tyre's consent and the automobile was damaged as the result of the negligence of Andrews.

2. Andrews was a minor and his mother, the defendant Matilda R. Andrews, had signed his application for a driver's license. Accordingly, the negligence of the son is imputed to the mother.21 Del.C. § 6105.

3. The automobile of Tyre was insured by the plaintiff Service Fire Insurance Company (hereinafter referred to as Service Fire) under a theft policy and a $50 deductible collision policy. Service Fire was notified of the accident and its agent investigated the accident on February 16, 1953. On that day, the agent advised Tyre that he could make claim under either the theft or the collision coverage; that if claim were made for theft it would be necessary to institute criminal proceedings against Andrews but that, if Tyre were willing to pay the initial $50, the loss could be paid by Service Fire under the collision coverage. The agent of Service Fire represented to Tyre that if the claim were paid under the collision coverage there would be no further proceedings against the defendants.

4. On February 16, 1953, Tyre signed a Proof of Loss under the collision coverage with the understanding that no further action, civil or criminal, would be taken against the defendants by Service Fire.

5. On February 17, 1953, Tyre obtained the payment of $50 from the defendant Matilda R. Andrews and delivered a release to her. It was the intention of the parties that this constituted a settlement of all claims and rights Tyre had against both defendants and that the ...


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