*1 Epsen Ehresman rather was difficult to find that than particular subject or as to the machines to the act “plant” Quist Duda, involved. See v. Neb. Epsen
N. W. 2d Even if be assumed that it “plant” press “operating” this used, where fails to violation of the act. Section establish a evidence requires guards protect against 48-409, R. R. S. things specified injury from not in- certain which do guards press equipment. required clude Roll are press hand, roll feed fed machines but this not is printing feed roll machine. Evidence that a or die cutting press is and is old hand-fed rather than auto- improper design is matic not evidence and does not, of itself, establish a violation of the Nebraska Fac- tory Act. undisputed Department
The evidence is also given responsibility inspection of Labor, which is Factory and enforcement the Nebraska Act, had in- spected this machine and had stated it that was like printing press they did not know what could put protection guards. on for The machine was only still use and the conclusion to be drawn from particular evidence is machine had been in- spected approved. Department Evidence that inspected approved particular of Labor has ma- prima is chine facie evidence that its use is not in viola- Factory tion of the Nebraska Act. judgment of the district court was correct
is affirmed.
Affirmed. MFA Mutual Jerry Insurance Company, appellant, v. appellees. A. et al.,
159 N. 2d 829 W.
Filed June 1968. No. 36815. *2 Day, for & Vinardi, Kauffman, Schatz Gross, Welch, appellant. Byrne,
Lathrop Kneifl & for Kneifl, and & Albracht appellees. before, J., Heard Carter, Boslatjgh, White, Spencer, C. JJ. and Newton,
Smith, McCown, J. Smith, Jerry Meisinger A. sued
Plaintiff insurance nonliability on declaration an automo- for a and others Meisinger. plaintiff policy to Plaintiff issued bile ground power on avoid contract the claimed misrepresentation of and traffic accidents violations in application After for the a trial the district appealed. has action, court dismissed applied for the on 1966. which, application agent filled out the com- Plaintiff’s pages, paper. prised Meisinger one on each side of a sheet two space
signed specified, it in the and he so did print: immediately below this statement set in boldface * * * hereby on make the basis of the “I questions made and I and answers above statements questions represent such statements and answers to appearing page The information are true.” (1) January date, 1946; birth disclosed: It correct. (3) beverages; occupation, (2) laborer; use of alcoholic mortgaged ownership Murphy (4) of 1960Oldsmobile a $500; (5) previous “Dairyland insurer, Co. Finance assigned ,(6) no insurance under the Mutual”;
287 risk-plan; (7) no cancellation or refusal of a policy' years. past in page Meisinger’s signature also included the with
following questions, “(If instructions, an- answers: question ‘yes’ explain fully 14 or 6, 7, 8, swer to 15 is — * * * back) any past years: 6. Has driver, * * * (b) any any Had accidents? Yes. Has auto 7. any driver EVER been arrested for offense or convicted * * * years any During past court? Yes. has ** moving been convicted traffic any permit or violation registration had license or drive suspended, automobile revoked or refused? Yes.” space page provided
In the on the other for full infor- concerning 6(b), mation answers the disclosure incomplete. agent Jerry “6-b- wrote: sign stop> Jerry 1966”; blowout a struck a “7- received ±p speeding 1965;” ticket for 6-b. ticket “14- as same & 7.” 6b testified ato conversation with # *3 ‘* * agent the about offenses as follows: said, “I things you I have had minor that amount, know, didn’t great damage,’ any to that and was then understood that important.” testimony it wasn’t His was contradicted agent the and her husband.
Meisinger’s kept by record the Director of Motor Ve- hicles disclosed 5 accidents and 5 traffic violations be- February tween 1962 and June 7, of Four the vio- subsequent lations occurred to 1965, November regarding and them the director had recorded “Traffic Sign,” “Negligent “Speeding,” “Stop. Sign.” Drive,” suspended Meisinger’s On 17, 1966, June he license for report property damage failure to a minor accident. He suspension ground July removed of on 20. Mean- July he while, Meisinger had revoked the license because points
had accumulated 8 from the 4 violations. Meisinger was not notified of the revocation until days approximately 21, 4 after his but a week delivery before of testimony general did not issue
There is applicants 3 acci- policies records of more than with years. preceding When in violations, or both dents, plaintiff’s Meisinger’s examined Steinmets underwriter (1) following Meis- application, data: he considered age. (2) years inger The Oldsmobile of a laborer was Throughout industry (3) mortgaged. insurance was Dairyland known as an insurer substand- Mutual was (4) Meisinger one had a record of accident ard risks. in but none 1961-64. Stein- 1965-66, and two violations might probably he obtain record from mets knew that Department reads of Motor Vehicles. statute department upon request part: shall, “The operating applicant, furnish a certified abstract of the charge any person shall entitled such record § seventy-five 60- therefor.” fee cents Supp., 1967. 412, R. S. plaintiff by Steinmets,
The disclosure allerted Company investigate Credit order hired Retail form copy message Meisinger his No of the wife. was According kept. specifically requested Steinmets, Meisinger’s driving information about habits. The re- Company port by indicated, Retail Credit no however, Rec.” examination and no “MVR” “Police/Traffic requested by plaintiff. It disclosed a direct interview Meisinger’s only wife and no with accidents traffic investigator commented, violations. “Both drivers capable are considered safe and drivers.” operating While the Oldsmobile on during period 1, 1966, October of license revoca- boy. he struck and killed a Plaintiff tion, immedi- Regarding ately informed. accident the Director of January Motor Vehicles mailed Safety Responsibility of clearance under the letter Act. *4 The clearance was rescinded March 8, because lia- according bility coverage, plaintiff, af- not been payment No of a claim forded. under the shown. * * * part: 44-358, Section R. R. S. reads in “No * * *
misrepresentation negotiation made in the for a ** * * * * of insurance the insured shall be policy, pre- deemed material or defeat or avoid the ** attaching, misrepresentation vent its unless such injury.” deceived the to its applicant’s misrepresentation may An in- induce an policy, although surer to issue a the insurer made an independent investigation. Wainwright See v. Wash- ington Nat. Co., Ins. 142 Neb. 372, N. W. 2d 368. The investigation may still be evidence that the insurer did rely misrepresentation. not on the “Where one to whom attempts false verify statements are made them and judgment upon form a the facts he discovers, this is evi- dence upon; the false statements were not relied but the evidence is not conclusive, since the statements may given weight. Again, have been falsity material may of statements be so obvious as to render it doubtful impossible or even that action have can based on been § them.” pi Restatement, Contracts, 476, Comment d, (Rev. 910. Ed.), See, also, § Williston on Contracts p. paramount purpose plaintiff’s hiring Retail Cred- Company should obvious. It is be obscure. Steinmets specifically requested remembered that he had informa- Meisinger’s driving plaintiff tion having about habits, destroyed copy report its investiga- order. The tion indicated no accidents or traffic violations, no ex- amination Rec.,” no customer re- “Police/Traffic quest may mistakenly “MW”. Steinmets have relied expectation: on this Should the applica- statement in grant equity untrue, tion turn out would rescission. possibility only emphasize We note the absence any satisfactory explanation. persuade The record fails to us that in fact incomplete application. relied statement in the judgment is affirmed.
Affirmed. *5 290 dissenting. J., Carter, Meisinger application for a written
Defendant made July policy 1966. The 17, insurance of automobile July 21, 25, him 1966. On issued to from that his 1966, received notice the state high- public operate a motor vehicle license ways He to inform insurance revoked. failed company at the time of the issuance of this fact before or policy. of the supporting appellant’s brief,
It is contended holding upon duty cited, are rests an authorities insurance of facts to inform the and the date discovered between date materially of issuance of the which affect ac ceptance Co., Carroll Risk Ins. of the risk. v. Preferred Stipcich App. 836; 170, Ill. 208 E. 2d v. Metro 60 2d N. politan 72 L. Co., Life Ins. 277 U. S. S. Ct. Casualty 895; Amsterdam Co., Ed. Millar v. New Strangio App. 599; Div. 289 N. Y. S. v. Consolidated Indemnity Co., & Ins. F. 2d my opinion,
In the failure of inform pertinent company of the his insurance fact that driver’s revoked, under license had been circumstances voiding shown, event, has the effect In and should be the issue is raised determined opinion. court’s appellees cross-appel George et al., Whitaker Irrigation appellant Gering
lants, District, v. cross-appellee. 2d 186 N. W. Filed June 1968. No. 36828.