Cochburn v. Hawkeye Commercial Men's Ass'n
| Decision Date | 17 November 1913 |
| Citation | 143 N.W. 1006,163 Iowa 28 |
| Parties | LAWRENCE W. COCHBURN v. HAWKEYE COMMERCIAL MEN'S ASSOCIATION, Appellant, and P. F. NUGENT, Intervener and Appellee (Consolidated with P. F. Nugent, Appellee v. Hawkeye Commercial Men's Association, Appellant) |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--HON. C. E. ALBROOK. Judge.
ACTION on certificate of accident indemnity. From a verdict and judgment for P. F. Nugent, plaintiff and intervenee defendant appeals.
Affirmed.
Bradford & Johnson, and Healy & Healy, for appellant.
Kellcher & O'Connor, for appellee.
P. F Nugent, pro se.
I.
This action was originally brought by Lawrence W. Cochburn to recover benefits under a certificate or policy of accident insurance, as a member of the defendant association, the appellant. The accident occurred September 22, 1908, and when suit was brought August 30, 1909, benefits were claimed for the period extending from September 22, 1908, to March 25, 1909. Afterward P. F. Nugent intervened, claiming to have acquired by assignment the cause of action in suit, following which on motion of the defendant the suit of Cochburn was dismissed because of a settlement made between the parties to the action, plaintiff and defendant, prior to the time of the intervention. The intervener claimed that the settlement had been made with knowledge of his rights, and was not binding upon him, and following the dismissal of the main action he filed petition in the case of Nugent v. Hawkeye Commercial Men's Association, based upon the same claim of right as pleaded in his petition of intervention. There was a consolidation of the two proceedings, trial to a jury, resulting in a verdict for the plaintiff, Nugent. The defendant appeals. The facts so far as they have bearing upon the errors assigned will appear in the opinion.
II. Before entering upon the merits of the appeal, we consider a motion to dismiss or affirm, filed by the appellee, based upon the alleged failure of appellant to serve its brief and argument within the time required by the rules of this court. In resistance to the motion the appellant, while conceding that there was a failure of strict compliance with the rule as to time, by affidavit of counsel shows such a state of facts which justifies a relaxation from the severe penalty of a dismissal, as there is not shown to have been any prejudice resulting from the delay. Bennett v. Emmetsburg, 138 Iowa 67, 115 N.W. 582; Caldwell v. Steckel, 143 Iowa 564, 121 N.W. 376.
III. In his argument counsel for appellant charges error on the part of the trial court in refusing on its motion to strike the petition of intervention for want of verification. This motion, as we gather from the record, was based upon the claim that the original petition was verified, and that under the statute all subsequent pleadings should have been. The amendment to the abstract shows that the original petition was not verified, and the objection based upon want of verification must fail.
IV. Error is also charged in the refusal of the trial court to strike the petition of intervention, for the reason, as stated in the motion, that the main action between the plaintiff and the defendant had been settled before the intervention had been offered. The petition of Cochburn, the original plaintiff, was filed August 30, 1909. It was met by a motion to change the place of trial, and by a demurrer, both of which were overruled. On September 29th the defendant filed its answer, consisting of a general denial, and a denial of the jurisdiction of the court. October 26th P. F. Nugent, claiming to own the cause of action by assignment, filed this petition of intervention. On November 9th the defendant filed a motion to dismiss the action because of a settlement had between it and Cochburn, proof of such settlement being presented with the motion, and on November 10th the motion to dismiss was sustained as against the original plaintiff, and denied as to the intervener. Thereupon the motion to dismiss the petition of intervention was filed, its ground, in addition to that already considered, being that the main action had been settled, and intervention could not be properly allowed. This motion was overruled on November 10th; exceptions being taken. On November 10th Nugent, intervener in the original action, commenced an action against the appellant based upon the assignment to him, and after issues had been framed, which followed an overruled motion to change the place of trial, the causes of action pleaded in the petition of intervention and in the Nugent petition were consolidated for the purposes of the trial, and this, the record shows, was without objection from the parties.
Support of the position taken by appellant is found in Henry v. Cass Co. Mill Co., 42 Iowa 33, in which this court held that a voluntary agreement between the parties to an action, by which their claims are adjusted, and the controversy settled, has the effect of a verdict, and when such agreement has been made a third party claiming an interest cannot intervene.
But that case, while stating a correct rule, is not entirely controlling here. The intervener in his petition pleaded that he held under an assignment from Cochburn, of which the defendant, this appellant, had due and full notice. With this claim in the pleadings, it became apparent that whatever may have been done by way of settlement between Cochburn and the appellant, if the latter at the time had notice of an assignment of the claim to Nugent, did not have the effect of disposing of the cause of action, and, while it may have been irregular to have permitted the petition of intervention to stand in the main action, in the face of the subsequent showing in the record that the petition of intervention and the Nugent petition were consolidated without objection, and that they each depended upon the same right, which was tried, the refusal to strike the intervention, if erroneous, was entirely without prejudice.
V. As we have noted in an earlier part of this opinion, error is based upon the refusal of the trial court to change the place of trial from Webster county to Marshall county. The basis of the motion was that the defendant was a resident of Marshall county, and that the right to sue in the county of his domicile is personal to the assured, and does not pass to an assignee of the assured. Code, section 3499, which provides for bringing actions on contracts of insurance, is as follows: "Insurance companies may be sued in any county in which the contract of insurance was made, or in which the loss insured against occurred, or, in case of insurance against death or disability, in the county of the domicile of the insured at the time the loss occurred, or in the county of plaintiff's residence."
That defendant, as an accident insurance association, is governed by the general rules as to rights and procedure which apply to insurance companies cannot be questioned, and it is therefore bound by the terms of the statute above quoted. The accident for which damages are claimed occurred in Webster county, which was then the residence of the assured. It resulted in disability. In the quoted section such an action may be brought in the county of the domicile of the assured at the time the loss occurred. Giving to the statute its fair interpretation, while the right of an assignee to bring suit in his own county and not the county of the residence of the assured may be the subject of doubt, it is clear that when the jurisdiction is laid in the county of the residence of the assured at the time of the loss, even in an action brought by his assignee, such is within the express terms of the statute. The appellant had not the absolute right to be sued in the county of its residence, although, had the plaintiff so elected, the venue would have been properly laid. While it is claimed that the right granted by the statute is purely personal to the assured, we are of opinion that it may...
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