Koehn v. Union Fire Ins. Co., 32668

• Decision Date: 27 January 1950
• Docket Number: No. 32668,32668
• Citation: 152 Neb. 254,40 N.W.2d 874
• Parties: KOEHN v. UNION FIRE INS. CO. et al.
• Court: Nebraska Supreme Court

Page 874

40 N.W.2d 874

152 Neb. 254

KOEHN v. UNION FIRE INS. CO. et al.

No. 32668.

Supreme Court of Nebraska.

Jan. 27, 1950.

Syllabus by the Court.

1. The general rule is that, while the court will take judicial notice of its records, it will not in one case take such notice of the records in another case.

2. The objection that there is another action pending between the parties for the same cause may be raised by demurrer to a petition only when the pendency of the former action is shown on its face.

3. In passing on a demurrer to a petition, the general rule is that only the allegations of fact well pleaded therein may be considered by the court.

4. The court may not, in passing on a demurrer, assume any fact not alleged in the pleading against which the demurrer is directed, consider any extrinsic fact, or make any finding of fact.

5. A policy of insurance should be considered as any other contract to give effect to the intention of the parties at the time it was made as expressed therein. The language of it should be considered not in accordance with what insurer intended the words to mean, but what a reasonable person in the position of the insured would have understood them to mean.

6. When an insurance contract prepared by insurer contains provisions reasonably subject to different construction, one favorable to it and one favorable to insured, the construction favorable to insured will be adopted.

7. In giving effect to this rule, it is equally important that the contract made by the parties shall be enforced, and that a new contract will not be interpolated by construction.

8. A policy of insurance will be given effect according to the ordinary sense of the terms used, and if they are clear they will be applied according to their plain and ordinary meaning.

9. Under the automatic insurance provisions, quoted in the opinion, of an automobile public liability policy of insurance, a two-ton truck, acquired by insured after the effective date of the policy, is not within such provisions.

Waring & Waring, Geneva, Kirkpatrick & Dougherty, York, for appellant.

Davis, Stubbs & Healey, Lincoln, Thomas J. Keenan, Geneva, John Mekota, Crete, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellee, Union Fire Insurance Company, for a consideration, issued and delivered to Reginald R. Koehn, the appellant, a contract of liability insurance protecting him, within the terms thereof, from loss because of damage done any person or property of others by the negligent operation of a motor vehicle by him, and obligating the appellee at its expense to defend any suit brought against him on any claim of that character. Appellant seeks to recover on the contract from appellee the amount of a judgment rendered against him in favor of Dale Bruntz in a suit for damages alleged to have been caused by the negligent operation of a motor vehicle by him and the expense of defending the suit, which the insurance company refused to do on notice given and demand by him. A demurrer of the insurance company to the petition of appellant was sustained, he elected not to plead further in the case, and it was dismissed. Dale Bruntz, appellee, made no appearance. The contest in this court is between Reginald R. Koehn and Union Fire Insurance Company.

Appellant by his petition alleged that the insurance contract obligated appellee to indemnify him against bodily injury or property damage caused to any person or property of others by his negligent use of a Chevrolet automobile owned by him and described in the contract, and if he was sued on a claim that he had negligently caused such injury to person or property, the insurance company at its expense would defend him in any suit on any claim of that character. A copy of the insurance contract is made a part of the petition and contains the provisions: 'IX. AUTOMATIC INSURANCE FOR NEWLY ACQUIRED AUTOMOBILES. If the named insured who is the owner of the automobile acquires ownership of another automobile and so notifies the company within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobile as of such delivery date; (a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile, or (b) if it is an additional automobile and if the company insures all automobiles owned by the named insured at such delivery date, but only to the extent the insurance is applicable to all such previously owned automobiles; provided, under coverages D, E, F, G, H, Land J, when a limit of liability is expressed in the declarations as actual cash value, such limit shall apply to such other automobile, and when a limit of liability is so expressed as a stated amount, such limit shall be replaced by the actual cash value of such other automobile, but any deductible amount so expressed shall apply in either case. This insuring agreement does not apply: (a) to any loss against which the named insured has other valid and collectible insurance, or (b) except during the policy period, but if such delivery date is prior to the effective date of this policy, the insurance applies as of such effective date. The named insured shall pay any additional premium required because of the application of the insurance to such other automobile. The insurance terminates upon the replaced automobile on such delivery date.' Appellant further alleged that, after the effective date of the insurance contract, he purchased an additional automobile, to wit, one 1936 two-ton Dodge truck, and all automobiles then owned by him were insured by appellee; that on the day of the purchase of the truck appellant parked it on U. S. Highway No. 6 so that a part of it was on the shoulder and a part on the paved portion of the road, and an automobile in which Dale Bruntz was riding was driven into the rear of the truck and he thereby suffered personal injuries; that he brought suit against the appellant for damages on account of his injuries and expenses incident thereto on the claim that careless operation of the truck by appellant was the cause of his injuries and damage, and he recovered a judgment of $2,500 against him; that he gave timely notice to appellee of the filing and pendency of the suit of Dale Bruntz and made demand that appellee defend it at its expense; that he tendered to appellee an additional premium on account of his purchase of the truck, and gave timely notice of his claim of its automatic insurance under the terms of the insurance contract in reference to newly acquired automobiles; that appellee returned the amount tendered as additional premium, and denied any liability to appellant; and that he, at his expense, did all things necessary to defend the suit brought against him by Dale Bruntz, and the expense thereof was $1,075.20. It is these amounts, with interest, costs, and attorneys' fees which appellant seeks to recover in the present action.

This appeal presents for determination the correctness of the ruling of the district court on the demurrer and its judgment of dismissal of the case.

The demurrer is special and general. Its first assignment is that the court was without jurisdiction of the subject matter of the action. This was overruled in the district court. There is no complaint made of this ruling, and it requires no further consideration.

The second ground of the demurrer is that another action to which the appellant and appellees were parties involving the same subject or cause of action was pending and undisposed of in the court where this suit was commenced. The petition in this case contains no statement concerning the pendency of any other action. It on its face discloses nothing from which it could be ascertained or inferred that any other action was pending concerning the parties to this case or the subject thereof or at all. The rule generally is that a court will not in one case take judicial notice of its record in another case. Loup County v. Rumbaugh, 151 Neb. 563, 38 N.W.2d 745; Johnson v. Marsh, 146 Neb. 257, 19 N.W.2d 366. Appellee is aware of this difficulty and weakness and seeks to eliminate it by insisting that the district court was justified in taking judicial notice of the record in that court of a prior case by the doctrine constituting an exception to the general rule and recognized and applied by this court in former cases to the effect that: '* * * where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in former proceedings involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action.' Witzenburg v. State, 140 Neb. 171, 299 N.W. 533, 534. See, also, Johnson v. Marsh, supra; Loup County v. Rumbaugh, supra. The argument of appellee in this regard is neither convincing nor valid. The exception to the general rule recognized in those cases has no application to the rule which is controlling in this case. This is made clear by the reference to Witzenburg v. State, supra, in In re Estate of McCleneghan, 145 Neb. 707, 17 N.W.2d 923, 927, as follows: 'The rule in those cases indicates that this court will take judicial notice of final orders of this court made in the same case on a former appeal or in other cases which are so interdependent as to warrant the application of the rule. These are exceptions to the general rule warranted from the necessity of giving effect to former holdings which finally decide questions of fact and law. The rule established by the Witzenburg case does not and was never intended to apply to the situation now before us.' The language 'situation now before us' used by the court in that case referred to the action of ...