Gregory v. Anderson ( 1961 )

Fairchild, J.

(dissenting). If it could be said that existence and enforcement of a rule against all drinking did, or probably would, materially affect the judgment of an insurer in deciding to write insurance for Gregory, or maintain it in force, and since the nature of the business does make it difficult to obtain insurance, at best, a denial of benefits for violation of the rule would seem proper. The record here does show that some companies will not insure trucks used in this type of business in any event; that other companies had canceled insurance, and that Iowa National was informed of the rule against drinking along with other facts concerning Gregory’s business before it agreed to issue the policy. Klipstein did not describe the negotiations with Iowa National in any detail, although he stated his conclusion that the rule had a decided bearing as far as acceptance of the risk was concerned. Perhaps this evidence would be sufficient to sustain a finding that off-hour drinking by Gregory’s drivers would jeopardize his insurance, but it does not conclusively establish that fact. The commission found to the contrary, Gregory had the burden of proof, and the commission’s finding should be sustained.

I am authorized to state that Mr. Justice Broadfoot joins in this opinion.