Opinion
No. 21862.
Decided October 23, 1967.
Action by insurer against corporation claiming that it was subrogated to the rights of the insured to recover for damage to airplane. Judgment for plaintiff.
Affirmed.
1. SUBROGATION — Insurer — Damages — Airplane — Negligence — Complaint — Evidence. In action by insurer asserting that damage to airplane was caused by negligence of flight instructor employed by corporation and that it was subrogated to rights of insured to recover for damage to the aircraft, reviewing court is of the view that there was competent evidence to support allegation of complaint that insurer was subrogated to claim of insured in the amount expended.
2. AVIATION — Assumption of Risk — Instruction — Insurer — Recovery — Policy — Appeal and Error. Trial court did not err in refusing to rule as matter of law that owner-insured had assumed risk of damage to airplane at the time he turned it over to flight instructor employed by defendant corporation presently being sued by aircraft's insurer to recover amount expended under policy.
Error to the District Court of Jefferson County, Honorable Christian D. Stoner, Judge.
E. A. Howard Baker, Jr., for plaintiff in error.
Bowman, Shambaugh, Geissinger Wright, for defendant in error.
Century Casualty Company, hereinafter referred to as the plaintiff, recovered judgment in the trial court against Kensair Corporation, who will be referred to as defendant, for the sum of $4,860.23 which was the amount expended by plaintiff under an insurance policy issued by it to the owner of a Beechcraft E-35 aircraft.
The claim of the plaintiff was based upon the assertion that the damage to the airplane was caused by the negligence of one Dennis R. Swaney, a flight instructor and qualified pilot employed by the defendant, and that plaintiff was subrogated to the rights of the insured to recover for the damage to the airplane.
As grounds for reversal of the judgment it is argued that: (1) There was no competent evidence to establish the allegation of the complaint that, "plaintiff was subrogated to the owner's claim in the amount it expended of $4,860.23"; and (2) that the trial court erred in refusing to rule as a matter of law that Al Taft (owner of the aircraft and the insured under the policy issued by the plaintiff) "had assumed the risk of the damage to his plane," at the time he turned it over to Swaney to be flown by him.
[1,2] We have read the record and have listened to oral arguments of counsel. We find each of the above grounds for reversal to be without merit.
The judgment is affirmed.
MR. JUSTICE McWILLIAMS, MR. JUSTICE HODGES and MR. JUSTICE KELLEY concur.