299 N.W. 220 | Neb. | 1941
This is an appeal from an action by the plaintiff, Antonio Gulizia, appellee herein, in the district court for Douglas county, upon an insurance policy of the defendant, Royal Indemnity Company, appellant herein, issued on appellee’s automobile, wherein judgment was entered by the district court awarding appellee a judgment for $440 for attorney’s fees and expenses had in defense of an action against him and his son by Henry Paulsen.
The facts, as stipulated to by the parties, are: That on February 4, 1933', Antonio Gulizia, hereinafter called the insured, purchased an insurance policy, No. MD 858235, from the defendant, Royal Indemnity Company, hereinafter referred to as the insurer, for a period of one year, which policy covered insured’s 1932 Plymouth sedan, against liability and property damage. Mrs. Antonio Gulizia, the wife of the insured, purchased the policy for her husband through the firm of Tesar & Tesar, of Omaha, and she and her son, Joe Gulizia, appeared personally, and before purchasing the policy the mother stated to Lad Tesar, a member of said firm, that the only person to drive said car was Joe Gulizia and that the other members of the family could not operate an automobile. On November 29, 1933, while the policy was in force, Joe Gulizia, the son, who was then fifteen years of age, left the Gulizia home at 1415 William street, Omaha, in said car and drove to his school, a distance of more than one and one-half miles, located at Twenty-third and J streets, Omaha, to get his report card, and on his return, in company with his school friend, Louis Santi, drove directly toward home by going north on Twentieth street from Vinton street, until he reached Twentieth and Poppleton streets, where he drove the car west at the intersection for the purpose of going to Twenty-second and Poppleton that his friend might inquire as to a wagon for handling: newspapers, thereafter intending to go to Sixteenth and Leavenworth streets with his friend, and that on turning west into Poppleton street the accident occurred wherein Plenry Paulsen was injured. As a result of this accident
The appellant contends that the court erred in entering judgment against it for the following reasons: (1) That the suit by Henry Paulsen against the appellant was res judicata of the rights of appellee herein; and (2) that the allowance of attorney’s fees and costs was contrary to the provisions of the policy.
It is appellant’s contention that the action of Henry Paulsen against it on the policy, based on the judgment obtained against Antonio and Joe Gulizia, is res judicata of all rig-hts of appellee herein. As was stated in the case of Plattsmouth Bridge Co. v. Turner, 260 N. W. 562 (128 Neb. 738) : “Judgment is not res judicata as to any fact at issue in subsequent action where neither issues nor parties are the same.” In the action of Henry Paulsen against the appellant, the appellee herein was not a party nor privy thereto, nor was the question of the liability of the insurer as to the claim of appellee herein for attorney’s fees and expenses in defending that action involved. Such judgment would not be res judicata in this action.
It is appellant’s further contention that, under the express provisions of the policy, when the accident occurred in which
Where the provisions of an insurance contract are not uncertain or ambiguous, but are clear and certain as to their meaning, and such provisions are not contrary to public policy or contrary to the provisions of our statutes, such policy will be enforced as made.
With reference to appellee’s contention that this case falls within the doctrine of Davis v. Highway Motor Underwriters, 120 Neb. 734, 235 N. W. 325, by reason of the statement made by Mrs. Gulizia to Lad Tesar, a member of the firm of Tesar & Tesar, at the time of obtaining the policy, a careful examination of the facts in that case will disclose a positive statement was made to the agent as to the age of the boy and the requirement of the applicant to have a policy covering the car while being driven' by the boy; that the agent of the insurer understood the requirements of the applicant and believed the policy delivered contained such provision. Because of the mutuality of the agreement the court reformed the policy in accordance therewith. Here, the only statement made to the agent of the insurer was-that “the only person to drive said car was Joe Gulizia and that the other members of the family could not operate an automobile.” Nothing was said as to the age of the boy, nor that a policy was desired to cover the car while being operated by the son in violation of law as to age, nor does it appear that the agent agreed to furnish a policy with provisions other than the one actually delivered. Under the facts it does not come within the rule announced in Davis v. Highway Motor Underwriters, supra.
The judgment of the district court is therefore
Reversed.