# Tober v. Hampton

> Nebraska Supreme Court · July 2, 1965 · 178 Neb. 858

URL: https://www.frixlaw.com/law-library/cases/9724523

## Case

- **Full name:** William P. Tober Et Al., Appellants, v. Wayne Hampton Et Al., Appellees
- **Court:** Nebraska Supreme Court
- **Decided:** July 2, 1965
- **Citations:** 178 Neb. 858; 136 N.W.2d 194; 1965 Neb. LEXIS 589
- **Precedential status:** Published
- **Opinion:** Dissent by Smith
- **Judges:** White, Carter, Spencer, Boslaugh, Brower, Smith, McCown
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Royal Indemnity Co. v. Aetna Casualty & Surety Co., 193 Neb. 752 (1975).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9724523

## Opinion text

Smith, J.,
dissenting.
Plaintiffs are the real parties in interest. The ordinary loan receipt will not change the status of a borrower in this respect. See Bozell & Jacobs, Inc. v. Blackstone Terminal Garage, Inc., 162 Neb. 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 *881 v. New England Power Co. (Mass.), 202 N. E. 2d 793 .
The majority opinion warrants a look through the form to the substance of the documents in reliance on Yezek v. Delaware L. & W. R.R. Co., 176 Misc. 553 , 28 N. Y. S. 2d 35. There a loan receipt given by one insured under an automobile collision policy was said to have been a receipt for payment; therefore, the court held that the insured was not the sole party in interest. We held otherwise in the Bozell case.
The instruments under review have not discharged defendants from liability. See, Western Spring Service Co. v. Andrew, 229 F. 2d 413 ; Wilson v. Anderson, 113 Colo. 396 , 157 P. 2d 690 ; Crocker v. New England Power Co., supra. In any event, with the preliminary issue limited to ownership of the claim we have no passport to the issue of discharge.
It is unnecessary to discuss other rights and obligations of plaintiffs, the Robinettes, and the gas company inter se. It is unnecessary to consider questions of indemnity, contribution, or pro tanto reduction in damages. The hypothesis that the loans are greater than any possible judgment does not militate against my conclusions. See Bozell & Jacobs, Inc. v. Blackstone Terminal Garage, Inc., supra.
For these reasons I vote to reverse and remand.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9724523. Public record. Not legal advice.