Dohse v. Market Mens Mut. Ins. Co.

• Citation: 253 Iowa 1186,115 N.W.2d 844
• Decision Date: 12 June 1962
• Docket Number: No. 50651,50651
• Parties: Margaret M. DOHSE, Appellee, v. MARKET MENS MUTUAL INSURANCE COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 844

115 N.W.2d 844

253 Iowa 1186

Margaret M. DOHSE, Appellee, v. MARKET MENS MUTUAL INSURANCE COMPANY, Appellant.

No. 50651.

Supreme Court of Iowa.

June 12, 1962.

D. C. Nolan and Edward W. Lucas, Iowa City, for appellant.

Filseth & Schroeder and A. Fred Berger, Jr., Davenport, for appellee.

GARFIELD, Chief Justice.

This is a law action by Margaret M. Dohse, holder of a judgment against Ralph and Geraldine Tompkins for personal injuries caused by the latter's negligence in operating an automobile, to recover the amount of the judgment from Ralph's insurance carrier. The defense was that the insurance was not applied for nor effective until the day after plaintiff was injured. Following trial, judgment was entered on jury verdict for plaintiff from which defendant insurance company has appealed.

The errors assigned are: 1) Striking defendant company's cross-petition to reform the policy sued on; 2) Refusal to receive in evidence a letter from defendant's agent to a representative in its home office; 3) Refusal to direct a verdict for defendant because of claimed insufficient evidence for plaintiff; and 4) Refusal to submit a special interrogatory to the jury. Most reliance is upon 2 and 4. We will consider the assigned errors in the above order.

I. Plaintiff was injured May 19, 1958, about 8:15 p. m., when the automobile driven by her son in which she was a passenger was struck from the rear by the Tompkins automobile while the Dohse car was stopped for a red traffic light in Iowa City. Plaintiff recovered judgment for her injuries against Ralph and Geraldine Tompkins, father and daughter. Execution was issued and returned unsatisfied. This action followed.

Ralph's application (exhibit 1) for the policy was written by defendant's agent Royston and signed 'Ralph O. Tompkins' by Ralph's wife. It is dated '5-19-58' and states it is effective from 'May 19, 1958, to Nov. 19, 1958.' The policy, issued July 21, 1958, states the policy period as '5-19-58 to 11-19-58' and its inception as '5-19-58.' Also 'The policy period shall begin and end at 12:01 a. m.'

Mrs. Tompkins testifies the application was signed and the premium paid May 19. The agent Royston says he made a mistake in writing the dates on the application and it was not written until May 20. This was the ultimate disputed question on the trial and the jury resolved it against defendant.

Seventeen and a half months after this action was commenced and three years and four months after plaintiff was injured defendant filed a cross-petition against plaintiff Mrs. Dohse and Ralph Tompkins, alleging the dates on the application and policy were the result of inadvertence, oversight and mistake, the application was not made until May 20 and asking that the policy be reformed to show the correct time. Defendant also moved to transfer the case to equity on the ground the issue raised by the cross-petition could be properly determined only in equity.

On plaintiff's motion the court struck the cross-petition. The ruling was correct. Virtually the same allegations as those in the cross-petition were contained in an amendment to defendant's answer on which the case was submitted to the jury. Defendant's answer, filed soon after the action was commenced, denied it had issued a policy agreeing to pay for injuries suffered by plaintiff on May 19, 1958.

As stated, this law action was commenced long before defendant's cross-petition and motion to transfer to equity were filed. If the insurance was not applied for and the policy did not take effect until May 20, after plaintiff was injured, the fact was complete defense to the action. The appropriate law issues had been drawn, although on more general terms, and were awaiting trial before the cross-petition was tendered. All defendant was interested in was a successful defense to the law action. Reformation of the policy was unnecessary. The fact which would reform the policy would defeat recovery on it. Where as here a court of law has obtained jurisdiction of such a controversy equity will not interfere.

See in support of these views: Biermann v. Guaranty Mutual Life Ins. Co., 142 Iowa 341, 343-345, 120 N.W. 963, and citations; Beeman v. Bankers Life Co., 215 Iowa 1163, 1165-1167, 247 N.W. 673, 674-675; Randolph v. State Farm Mut. Auto Ins. Co., 216 Iowa 1414, 1416-1417, 250 N.W. 639; Poole v. Poole, 221 Iowa 1073, 1078, 265 N.W. 653; New York Life Ins. Co. v. Miller, 8th Cir., Iowa, 73 F.2d 350, 97 A.L.R. 562, and Anno. 572; 30 C.J.S. Equity § 33; 19 Am.Jur., Equity, § 104.

II. The trial court sustained plaintiff's objection of hearsay, self-serving and incompetent to defendant's exhibit 2, a letter from its agent Royston to Greeb, an employee in defendant's home office, which Royston testified he sent the company with the application. The two papers were received in the home office in Milwaukee May 26, a week after the application was dated.

Exhibit 2 states Tompkins 'let his insurance lapse as of January 18-58 he had with us. * * * His daughter age 17 (Sept) ran into the back of Dohse car 5-19-58. That was the first he began to check to see if his insurance was in force. To make a long story short there was about 50 in damage to Dohse car. * * * Baird said I should write and explain this as we will have to file a SR-22 he thinks. This man was covered under 5575-98 949 then failed to send in 14F00684. I feel a little bad about this but it wasn't my fault 100%--Thanks Bob Jack'

Baird was a general agent for defendant who supervised agents in the area including Iowa City. Obviously exhibit 2 was not written until after Royston had received some communication from Baird following the accident on May 19.

It is argued exhibit 2 was part of the application. One question on the application was whether 'a financial responsibility' was required. The answer 'yes' to this was checked on the application. This was followed by 'see letter attached.' The application also bore the endorsement, 'No SR 22 to be filed.' This was evidently not written on the application until some time after Mrs. Tompkins signed it. Appellant says 'SR 22' refers to the requirement of the state department of public safety that one who has had an accident must file such a form before his driver's license may be continued or renewed.

Another question on the application was whether any driver of the automobile 'had accidents in past 3 years.' The answer 'yes' to this was also checked, followed by the notation 'see letters.' This appears to refer to correspondence between the agent Royston and the home office after the application was signed. Som entries on the application were made in the home office after it was received there. No copy of the application or the letter exhibit 2 was attached to the policy or indorsed thereon.

We think the court's ruling on the admissibility of exhibit 2 was not error. So far as shown this letter was not called to Mrs. Tompkins' attention in any way and she and her husband had no knowledge of it. As stated, it was evidently not written until after Mrs. Tompkins signed the application. The fair inference is that the references on the application to 'letter' and 'letters' were added to it after it was signed. Exhibit 2 was hearsay and self-serving. Cummings v. Pennsylvania Fire Ins. Co., 153 Iowa 579, 583-584, 134 N.W. 79, 37 L.R.A.,N.S., 1169, Ann.Cas.1913E 235; Massachusetts Bonding & Inc. Co. v. Parsons Elec. Co., 8th Cir., Mo., 61 F.2d 264, 272, 92 A.L.R. 218, 232; Insurance Co. of North America v. Guardiola, 129 U.S. 642, 643, 9 S.Ct. 425, 32 L.Ed. 802; Valley Shoe Corp. v. Stout, 8th Cir., Mo., 98 F.2d 514, 520; Landers v. Watertown Fire Ins. Co., 19 Hun (N.Y.) 174, 176, rev'd on other grounds 86 N.Y. 414; Benninghoff v. Agricultural Ins. Co., 93 N.Y. 495, 501. See also Brookins v. Brookins, 230 Iowa 1272, 1274-1275, 300 N.W. 540, 541.

29A Am.Jur., Insurance (1960), § 1883, pages 942-943, states: 'However, self-serving declarations--that is, statements favorable to the interests of the declarant or to the interests of the declarant's principal--are not admissible in favor of the declarant or his principal as proof of the facts asserted. In an action on a lost policy, the policy register of a deceased agent who issued the policy, which did not show that the policy contained a lightning clause, as it was claimed would have been indicated on the register had such been the case, is not admissible to show the absence of a lightning clause. It has also been held that correspondence between the insurer's branch office and the agent by whom an oral agreement to renew insurance was made, of which correspondence the insured knew nothing, is inadmissible as hearsay in an action for a loss...