Barish-Sanders Motor Company v. Fireman's Fund Insurance Company
| Decision Date | 04 March 1938 |
| Docket Number | 30118 |
| Citation | 278 N.W. 374,134 Neb. 188 |
| Parties | BARISH-SANDERS MOTOR COMPANY, APPELLANT, v. FIREMAN'S FUND INSURANCE COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. The rule to construe ambiguous or inconsistent terms of an insurance contract in favor of insured, because insurer selected the language used, does not justify the imposing of insurance risks not assumed.
2. " Under policy insuring against loss or damage to goods while loaded for shipment, or in transit on described truck, by ‘ collision' of truck with any other automobile, vehicle, or object, insurer held not liable for damage to goods on top of load which came in contact with overhead bridge, where no part of truck itself came in contact with bridge." Mendelsohn v. Automobile Ins. Co., 290 Mass. 228, 195 N.E. 104.
3. When, by express terms, a limited collision coverage of cargo was specifically added to the policy, it cannot be extended by construction beyond the limitations contained in the language thus employed.
Appeal from District Court, Douglas County; Sears, Judge.
Action upon a " transportation floater" policy by the Barish-Sanders Motor Company against the Fireman's Fund Insurance Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
Johnsen, Gross & Crawford, for appellant.
Swarr, May & Royce, contra.
Heard before GOSS, C. J., EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ., and TEWELL, District Judge.
This is an appeal from the judgment of the district court for Douglas county sustaining a demurrer to plaintiff's amended petition, on the ground that the same did not state facts sufficient to constitute a cause of action. The action is one at law upon a "Transportation Floater" policy. It is not a suit in equity to reform the policy, and to recover upon the instrument so reformed. Plaintiff's petition properly pleads the terms of the policy in suit, and attached to its pleading, with due reference, is a photographic copy of the policy. As the basis for its claim for indemnity, plaintiff alleges that four automobiles, constituting a cargo covered by the terms of the insurance policy, while en route and in transit, while "passing beneath an overpass near Iowa City, Iowa," collided with and struck said overpass, and three of said automobiles were damaged in the sum of $ 1,056.10. The items of damage suffered are itemized, but there is no allegation that the vehicle on which the automobiles damages were being carried collided with the overpass and the right to damages is predicated solely on the collision of the cargo or load.
The policy in suit is known as a "Transportation Floater" policy. By its terms, it insures certain goods and merchandise, including automobiles, trucks, and farm machinery in transit, against certain specified perils. The terms of the policy appear in part in the printed provisions of the form employed, and in part in typewritten additions thereto. "Transportation Endorsement C," attached to and constituting a part of the policy in suit, so far as material to this controversy, as part of the printed provisions embraces the following:
The photographic copy attached to the petition discloses that in addition to item "(d)" quoted above, which terminates with a comma, the original blank policy as part of item "(d)" contains the words "and collision of the load with any object." It also appears that the last-quoted words were stricken at the time the policy was written, with the use, as plaintiff's brief informs us, of red ink.
Plaintiff's contention may be summarized in the following words, quoted from its brief, viz.:
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