Omar Baking Company v. Employers Liability Assurance Corporation, Ltd.

• Decision Date: 07 February 1936
• Docket Number: 29519
• Citation: 264 N.W. 873,130 Neb. 365
• Parties: OMAR BAKING COMPANY, APPELLANT, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD., APPELLEE
• Court: Nebraska Supreme Court

264 N.W. 873

130 Neb. 365

OMAR BAKING COMPANY, APPELLANT, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD., APPELLEE

No. 29519

Supreme Court of Nebraska

February 7, 1936

APPEAL from the district court for Douglas county: JOHN W. YEAGER JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. An insurance policy is a contract and, if couched in unambiguous and clear language, should be construed as other contracts.

2. " Where there is no uncertainty as to the meaning of an insurance contract, and the same is legal and not against public policy, it will be enforced as made." Rye v New York Life Ins. Co., 88 Neb. 707, 130 N.W. 434.

3. Loss sustained by assured in being compelled to pay damages for breach of a warranty in the sale of a horse is not covered by this provision: " This policy covers bodily injuries, accidentally sustained by any person or persons other than employees of the assured, caused by, and/or owing to the ownership, the maintenance, the use, and/or the operation of, all horses used in connection with the business operations of the assured."

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

Action by the Omar Baking Company against the Employers Liability Assurance Corporation, Limited, of London, England. From a judgment dismissing the action after a general demurrer to the petition was sustained, plaintiff appeals.

Affirmed.

George B. Boland and Edward F. Leary, for appellant.

Hall, Cline & Williams, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ.

OPINION

GOOD, J.

This is an action upon a policy of liability insurance. A general demurrer to the petition was sustained. Plaintiff elected to stand upon its petition, and the action was dismissed. Plaintiff has appealed.

Plaintiff owns and operates a bakery in the city of Omaha and, in the prosecution of its business, owns and uses a large number of horses and horse-drawn vehicles for delivery of its products. One of its horses so owned, having become unsuited for plaintiff's use, was sold to one Lentz. When Lentz attempted to use the horse a few days later it ran away and seriously injured him. Lentz sued plaintiff for damages, alleging that the horse had been warranted to be gentle and suited to his needs. Lentz recovered a judgment against plaintiff which was affirmed by this court. Lentz v. Omar Baking Co., 125 Neb. 861, 252 N.W. 410. Plaintiff satisfied the judgment obtained against it by Lentz and makes its loss to Lentz the basis for recovery in this action.

The policy in question is denominated "Teams Public Liability Policy" and contains this stipulation: "This policy covers * * * bodily injuries, * * * accidentally sustained by any person or persons other than employees of the assured, (1) caused by, and/or owing to the ownership, the maintenance, the use, and/or the operation of, all horses * * * used in connection with the business operations of the assured."

Plaintiff contends that the loss sustained by it in the suit by Lentz was one covered by the above provision of the policy. On the other hand, defendant contends that the loss sustained by plaintiff in satisfying the Lentz judgment was not covered by the policy.

Plaintiff argues that the loss which it incurred by reason of paying the judgment to Lentz was one arising out of its...