Dosland v. Preferred Risk Mut. Ins. Co.

• Decision Date: 15 November 1951
• Docket Number: No. 47904,47904
• Citation: 242 Iowa 1220,49 N.W.2d 823,29 A.L.R.2d 712
• Parties: , 29 A.L.R.2d 712 DOSLAND v. PREFERRED RISK MUT. INS. CO.
• Court: Iowa Supreme Court

Page 823

49 N.W.2d 823

242 Iowa 1220, 29 A.L.R.2d 712

DOSLAND v. PREFERRED RISK MUT. INS. CO.

No. 47904.

Supreme Court of Iowa.

Nov. 15, 1951.

Zastrow, Noah & Smith, of Charles City, for appellant.

Geiser, Donohue & Wilkins, of New Hampton, for appellee.

OLIVER, Chief Justice.

March 3, 1949, plaintiff purchased a new automobile for approximately $3,000 and insured it with defendant against damage caused by collision. The policy provides, 'The company may pay for the loss in money or may repair or replace the automobile * * * or may take all or such part of the automobile at the agreed or appraised value, * * *.' It contains a $100 deductible provision.

Plaintiff's husband, Dr. M. O. Dosland, a chiropractor, used the car in his business. December 5, 1949, it collided with a truck and was extensively damaged. Plaintiff had it hauled to a garage in New Hampton, Iowa, the town of her residence. Defendant was immediately notified by telephone, promptly investigated and offered to take the car and pay plaintiff $1,800. Plaintiff did not accept the offer. Later Dr. Dosland telephoned defendant about accepting it and was told it 'had been withdrawn and $1,700 was now the offer.'

Aside from securing bids for repairing the car defendant took no action until about February 20, 1950, when it removed the car to the garage of Knipschield Motor Sales Company in Charles City, without plaintiff's knowledge.

In the meantime, February 2, 1950, plaintiff's attorneys had written defendant's attorneys offering to accept the $1,800 offer. In the letter reference was made to a proposed damage suit against Hassman, the owner of the truck which had collided with plaintiff's car, in which action plaintiff and defendant would cooperate. It was suggested it might be necessary to have plaintiff's car repaired to determine the amount of repairs for that suit. February 24 plaintiff's attorneys wrote they had received no reply to the letter and that Dr. Dosland informed them the local garage advised him someone had called and removed the car. They asked to be informed of the present status of the matter.

February 25 defendant's attorney replied, the insurance company advises, 'that in accordance with your letter it would be necessary to have the car repaired so that we would be able to determine the actual cost of restoring the same. The car is now at the Knipschield Motor Sales in Charles City, Iowa, being repaired. Under the circumstances it would seem that the best procedure to follow would be to start the action (against Hassman). Please advise as to your opinion of the necessary steps we should take.'

February 27 plaintiff's attorneys replied: 'What Dr. Dosland desires to know is what the company is going to do with reference to settlement of his claim under the policy. We wrote you stating the amount he was willing to settle for * * *.' The letter stated also that if action was brought against Hassman, the measure of damages would be the cost of repair, if the car could be repaired. 'If the Knipschield Motor Sales Company, after carefully checking the car--can give an estimate * * * this in my opinion would be sufficient for our purpose in proving up our claim for damages. However, this is entirely independent from Dr. Dosland's claim against it (defendant).' March 3 defendant's attorneys wrote: '* * * the company is now taking steps to have the car repaired, and when restored, they will offer it to Dr. Dosland.' April 25 plaintiff's attorneys wrote: 'Dr. Dosland has inquired of us a number of times with reference to his collision loss on his car. * * * The only information which he has is * * * that some one called (at the local garage) for the car some time ago and stated they were taking it to Charles City. We are wondering how long he will be required to wait before the company settled this loss?'

June 22, 1950, defendant's attorneys wrote they had been informed the automobile was ready to be delivered. 'There are a few minor repairs to the trim of the car that have not yet been done, but this can be done very easily as soon as the parts are delivered, however, the car is now ready to operate.' They requested Dr. Dosland be advised and inform them when and where he would like the car delivered.

July 7 plaintiff's attorneys wrote: 'We understood from your conversation in our office this week also that the parts which were referred to in your letter (of June 22) had not yet been placed upon the car and that the car had not been repaired completely.' The letter stated also that more than seven months had elapsed since the collision, that the company without the knowledge or consent of Dr. Dosland took the car from the O'Halleran garage and had since retained it, as a result of the prolonged delay there would be a considerable decrease in its sale value because of its added age of seven or eight months. The letter informed the company plaintiff would not accept the car.

At the time of the trial, in December, 1950, defendant had not removed the car from the Knipschield garage in Charles City. Mr. Knipschield testified on cross-examination the drivemaster did not work properly and the car had a vacuum leak.

Plaintiff brought this action to recover the value of the car at the time of the collision. The jury was instructed that if it found for plaintiff it should reduce its verdict $100 on account of the deductible provision in the policy. There was a verdict for plaintiff for $2,100. From the judgment thereon defendant has appealed.

I. Defendant assigns as error the overruling of its motion to require plaintiff to divide her petition into two counts. Defendant contends plaintiff pleaded one cause of action based upon the policy and another based upon conversion. Although there is a statement in the amended and substituted petition that defendant still had possession of, and by its acts had converted the car, the action is based upon the contract of insurance only and the damages demanded are the value of the car immediately prior to the collision, under a provision of the policy. The order overruling the motion was correct.

II. With its answer defendant filed a motion for cross petition against new party, supported by affidavit, asking that Paul Hassman be brought into the case as a cross-defendant, alleging the action arose from a collision between plaintiff's automobile and Hassman's truck, under an insurance policy issued by defendant to plaintiff, and that defendant would have a right to subrogation against Hassman when it paid plaintiff the damage to plaintiff's automobile. Error is assigned to the order overruling this motion.

The motion was made under Rule of Civil Procedure 33(b) which provides, 'When a defendant * * * will, if held liable thereon, thereby be entitled to a right of action against one not already a party, he may move to have such party brought in, to the end that the rights of all concerned may be determined in one action.'

R. C. P. 33(b) does not require that the trial court sustain such a motion. Although this court has not passed upon the precise proposition, courts generally hold such motions are addressed to the sound judicial discretion of the court. In each case the controlling question is whether the granting of the motion will tend to better serve the interests of justice and expedite the litigation. General Taxicab Ass'n, Inc., v. O'Shea, 71 App.D.C. 327, 109 F.2d 671; Andromidas v. Theisen Bros., D.C.Neb., 94 F.Supp. 150.

In the case at bar the issues between plaintiff and defendant are so foreign to those of the proposed action against Hassman that the two actions could not have been tried together advantageously nor without danger of confusion. Moreover, the making up of the issues in the new action would have delayed the trial of the original case. If the two actions could not be expeditiously tried together it does not appear defendant was, in this case, prejudiced in any way by the denial of its application. We conclude the order of the trial court overruling the motion was not an abuse of the discretion lodged in it.

III. Defendant complains of the order overruling its motion for directed verdict which was based upon the theory the record showed defendant elected to repair the automobile and did repair and tender the same to plaintiff in full compliance with the terms of the policy. The policy provides the company may pay for the loss, repair the automobile or take the automobile at the agreed or appraised value.

The record is undisputed that after the collision plaintiff's claim was promptly presented and defendant offered to take the automobile and pay plaintiff $1,800, which defendant contended was the value of the car prior to the collision, less the $100 deductible. Plaintiff believed the value was greater and refused the offer. Shortly thereafter plaintiff retained attorneys who continued to negotiate with representatives of defendant upon the basis of payment to plaintiff of the value of the car. Connected with these negotiations was the proposed cooperation of the parties in an action for damages to be instituted against the owner of the truck which collided with plaintiff's car.

The letter of February 2, 1950, from plaintiff...