Borsky v. National Fire Insurance Company
| Decision Date | 10 December 1929 |
| Docket Number | 26873 |
| Citation | 227 N.W. 821,119 Neb. 178 |
| Parties | H. BORSKY, APPELLEE, v. NATIONAL FIRE INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed and dismissed.
Judgment reversed, and action dismissed.
Syllabus by the Court.
Where a fire insurance policy contains a provision that insurer shall not be liable for loss while the insured automobile is being rented under contract or leased, and during the life of the policy the car is destroyed by fire while it is being operated by a lessee who has leased the car under contract there can be no recovery.
In an action on a fire insurance policy, where the record discloses that at the time of loss by fire the policy was suspended and not in force, it is error to refuse to direct a verdict for the insurer.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by H. Borsky against the National Fire Insurance Company of Hartford, Connecticut, and another. From an adverse judgment, named defendant appeals. Reversed, and action dismissed.
Rose, Wells, Martin & Lane, for appellant.
Howell, Tunison & Joyner, Kennedy, Holland, De Lacy & McLaughlin, contra.
Heard before GOSS, C. J., GOOD, THOMPSON, EBERLY and DAY, JJ., and FOSTER and SHEPHERD, District Judges.
From an adverse judgment in an action on a policy of fire insurance, defendant appeals.
The policy covered an automobile which was destroyed by fire during the life of the policy. One of the several defenses pleaded and relied on is that, under the terms of the policy, the automobile was not covered by the policy at the time of the fire, because it was being used as a leased or rented car.
The policy contains the following clause: "Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage to any property insured hereunder: * * * (b) while the automobile described herein is * * * being rented under contract or leased."
From the record it appears that plaintiff bought and kept the car for his individual use, and it was stipulated in the policy that it was to be used only for private and pleasure purposes. Plaintiff also owned and operated a public garage and taxicab and "drive-it-yourself" business. In the evening on which the car was destroyed, plaintiff's foreman, in violation of his instructions, leased the car in question to a colored boy for his private use, and the latter, with a number of companions, was using the car in a "joy ride," when it upset, took fire and was practically destroyed.
Defendant urges that the trial court erred in not directing a verdict for defendant; in refusing to sustain a motion for judgment notwithstanding the verdict; and that the judgment is not sustained by the evidence.
No rider or written agreement was added or attached to the policy providing for coverage of the automobile while leased or rented. The question for determination is: Was the automobile, while leased, covered by the policy without such rider or written agreement?
Plaintiff argues that since the policy contains no specific forfeiture clause the court, by interpretation or construction, is powerless to incorporate one into the policy. He cites and relies on the opinion in Hagelin v. Commonwealth Life Ins. Co., 106 Neb. 187, 183 N.W. 103, wherein it was held: "Where there is no specific provision in a policy of life insurance for forfeiture, either whole or partial, on a breach of a condition by the assured, the court will not write one in; nor can the insurer afterwards impose new conditions creating a forfeiture without the consent of the assured, and without a new consideration."
We find no occasion to depart from nor to criticize the ruling above quoted, but we think it inapplicable to the instant case. In the Hagelin case the policy was issued on the life of Paul Hagelin and contained a provision: "But if at any time he engage in military or naval service in time of war (the militia not in active service excepted), he shall secure the company's written consent and pay the extra premium therefor." Hagelin became a soldier in the World war, and the company was advised of his military service. It did not cancel the policy. There was no provision in the policy for a forfeiture in case the assured did engage in military service, or for its suspension...
To continue reading
Request your trial