Crowell v. Home Mut. Ins. Co. of Iowa

• Decision Date: 15 June 1943
• Docket Number: No. 46258.,46258.
• Citation: 10 N.W.2d 69,233 Iowa 531
• Parties: CROWELL v. HOME MUT. INS. CO. OF IOWA.
• Court: Iowa Supreme Court

233 Iowa 531

10 N.W.2d 69

CROWELL

v.HOME MUT. INS. CO. OF IOWA.

No. 46258.

Supreme Court of Iowa.

June 15, 1943.

Appeal from District Court, Floyd County; Tom Boynton, Judge.

Action at law against insurer by holder of unsatisfied judgment for damages against person insured in automobile policy. From order overruling plaintiff's motion to strike parts of defendant's answer, plaintiff appeals. Opinion states the facts.

Appeal dismissed.

W. G. Henke and R. W. Zastrow, both of Charles City, for appellant.

Paul W. Steward and Herschel G. Langdon, both of Des Moines, and Larson & Carr, of Charles City, for appellee.

OLIVER, Justice.

This action was instituted against Home Mutual Insurance Company of Iowa, successor to Home Mutual Insurance Association of Iowa, upon a policy of automobile liability insurance, issued in March, 1935, to Earl Demo, by said association. Plaintiff's petition alleges: In 1935, plaintiff was injured while riding with Demo in the automobile covered by the policy; subsequently plaintiff recovered judgment against Demo for damages on account of said injury; upon appeal the judgment was affirmed; execution issued against Demo and was returned unsatisfied; the provisions of the policy require the insurer to pay any such judgment, within its limits. Judgment against defendant is prayed for the amount of the judgment against Demo, with interest and costs.

The answer is in 6 divisions: (1) General denial; (2) that the policy was issued under the powers given the association by Chapter 406, Code of Iowa 1931, particularly Code Section 9029, and plaintiff has no right to maintain the pleaded action under the policy and the law then in effect; (3) that the policy is a contract of indemnity under the provisions of which, as well as the statutes then in effect, plaintiff is not entitled to recover; (4) that fraudulent concealment and misrepresentation by Demo of material facts or his false testimony bars recovery by plaintiff; (5) that Demo's failure to cooperate with the insurer rendered the policy void; (6) that the action is barred by a one year limitation in the policy.

Plaintiff moved to strike the principal paragraph of said Division 2 and Divisions 3, 4, 5 and 6. The motion was divided into paragraphs, each of which was addressed to a separate division of the answer. This appeal is from the order overruling said motion.

The motion asserts said paragraph of Division 2 is incompetent, irrelevant and immaterial, a conclusion of law and fact, and not an ultimate statement of fact, and redundant. This ground of the motion assails the form of the pleading and not the sufficiency of the matters pleaded to constitute a defense, if established.

The grounds of the motion addressed to Divisions 3 and 5 and 6 are similar to the foregoing and, likewise, do not assail the legal sufficiency of the matters pleaded to constitute a defense.

As to Division 4, the motion asserts “no fraud or damage was shown to the defendant and that the same does not state a defense.”

Appellant's written argument states only: “This raises the question where fraud is attempted to be pleaded whether it is subject to a motion to strike or must plaintiff move for more specific statement. The appellant concedes that there is probably sufficient pleading in Division 4 to raise a...