The following opinion was filed October 13, 1931:
Rosenberry, C. J.(on motion for rehearing). The sentence used in the opinion as follows : “Whether or not there has been such a breach of the policy as discharged the insurer is a question that ought to be determined only when the insured is in court,” may be so construed as to cover situations not presented by the facts in this case. The sentence was used by way of argument and was intended to indicate that the insurer could not be concluded unless and until he had had his day in court. It is apparent that situations might arise where policies did not contain a “no action” clause, in which the insurer should have the right to defend on the ground that the policy of insurance had been breached. That situation, however, is not presented by the facts in this case.
By the Court. — Motion for rehearing denied. No costs.