Andrews v. Commercial Cas. Ins. Co.

• Citation: 259 N.W. 653,128 Neb. 496
• Decision Date: 08 March 1935
• Docket Number: 29159.
• Parties: ANDREWS v. COMMERCIAL CASUALTY INS. CO.
• Court: Supreme Court of Nebraska

259 N.W. 653

128 Neb. 496

ANDREWS v. COMMERCIAL CASUALTY INS. CO.

No. 29159.

Supreme Court of Nebraska.

March 8, 1935

Syllabus by the Court.

1. Where both plaintiff and defendant in an action at law move for a peremptory instruction at the close of all the evidence, the trial court may excuse the jury and determine the issues by findings equivalent to the verdict of a jury.

2. In an automobile liability insurance policy, the word " household" in an omnibus clause extending the liability available to assured to other members of the household means " Those who dwell under the same roof and compose a family."

3. In an action on an automobile liability insurance policy, an omnibus clause extending the liability available to the assured to any person while riding in or legally operating her car with her permission or with the permission of an adult member of her household, evidence held to sustain a finding that the liability extended to her adult brother.

4. Where the issues and parties in two separate actions were different, a judgment in the first held not res judicata as a defense in the second.

5. Rulings restricting cross-examination of a witness and refusing to permit the amendment of an answer during the trial are largely in the discretion of the trial court and are not reversible as errors in absence of an abuse of such discretion.

6. In allowing an attorney's fee to be taxed as costs in addition to a judgment in favor of plaintiff in an action on an automobile liability insurance policy, the trial court may consider the amount involved; the responsibility assumed; the questions of law raised; the time and labor necessarily required in the performance of duties; the result of service performed; professional diligence and skill.

Appeal from District Court, Douglas County; Thomsen, Judge.

Action by Paul H. Andrews against the Commercial Casualty Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Rosewater, Mecham, Shackelford & Stoehr, of Omaha, for appellant.

Frost Hammes & Nimtz, of Omaha, for appellee.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, and CARTER, JJ., and CHASE, District Judge.

ROSE Justice.

This is an action on an automobile liability insurance policy issued by Commercial Casualty Insurance Company, assurer, defendant, to Louise Marvin, named assured, July 21, 1930. To the limit of $5,000 the insurance covered liability imposed by law upon her for damages on account of bodily injuries accidentally suffered by her, or any other person within the terms of the insurance risk, by reason of the ownership, maintenance and use of a Ford sedan owned by her. By the terms of the policy, defendant, calling itself the " Company," bound itself as follows:

" To pay the expense of litigation and all costs taxed against the assured in any legal proceeding defended by the company, and all interest accruing after entry of any judgment until the company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the company's liability as expressed in this policy. * * *

That the terms and conditions of the policy are so extended as to be available, in the same manner and under the same conditions as they are available to the named assured, to any person or persons while riding in or legally operating any of the automobiles described in the warranties, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or, if the named assured is an individual, with the permission of an adult member of the named assured's household other than a chauffeur or a domestic servant, except that the terms and conditions of this policy shall not be available to a public automobile garage, automobile repair shop, automobile sales agency, automobile service station and the agents or employees thereof."

When the policy was in force July 4, 1931, Paul H. Andrews, plaintiff, was injured in a collision between an automobile in which he was riding and assured's Ford sedan while being driven by her brother, Fred Daniels.

In a former action for negligence causing the collision and resulting damages to plaintiff, the latter recovered a judgment October 24, 1932, against Fred Daniels, defendant therein, for $2,500, which was reduced by remittitur to $1,700 and which, for the latter sum and interest, is in full force.

The purpose of the present action is to recover from defendant herein, the assurer, under the omnibus coverage clause quoted, the adjudicated damages sustained by plaintiff in the former action, on the theory that the policy issued to Louise Marvin, the " named assured," covered liability for the negligence of her brother, the petition alleging that he was driving her sedan with her permission at the time of the accident; that he was then an adult member of her household; that he was driving at the time with the permission of Anna Daniels, an adult member of assured's household and the mother of both assured and Fred Daniels; that execution was issued on the former judg ment and returned unsatisfied; that the judgment debtor is insolvent and unable to pay the debt.

The answer admits execution of the policy, the accident, some injury to plaintiff and recovery of the judgment. It also contains pleas that the policy does not cover liability for injuries inflicted on plaintiff by Fred Daniels; that defendant is not liable for the unpaid debt evidenced by the former judgment from which...