Ellis v. Bruce
| Decision Date | 22 November 1932 |
| Docket Number | No. 41660.,41660. |
| Citation | 215 Iowa 308,245 N.W. 320 |
| Parties | ELLIS v. BRUCE ET AL., AND FOUR OTHER CASES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.
We have before us a skeleton record in five cases brought by five plaintiffs against the same defendants to recover damages resulting from an automobile accident. The injuries complained of were all suffered in the same accident by the respective plaintiffs. Though five appeals are pending before us, they all turn upon the same question. We have therefore ordered their consolidation for the purpose of the appeal, and in the interest of economy. The abstracts and arguments are filed in the case of plaintiff, M. W. Ellis. Our holding therein will be applicable to each case. We shall confine our phraseology to the single case. The plaintiff joined as defendants George Bruce, the alleged tort-feasor, and the Employers' Mutual Casualty Company, as an insurer under policy of liability insurance. Each defendant challenged the petition as involving a misjoinder of causes of action, and each defendant moved to strike from the petition against himself the purported cause of action against the other. Each motion was overruled, and the defendants appeal.
Reversed.Miller, Miller & Miller, of Des Moines, and Senneff, Bliss, Witwer & Senneff, of Mason City, for appellants.
Burt J. Thompson and Dudley Weible, both of Forest City, and Thomas & Loth, of Ft. Dodge, for appellees.
The plaintiff purported to allege a cause of action against the defendant George Bruce, as the owner of a truck. He averred that the driver of the truck was guilty of negligence, which caused the injuries complained of. The negligence charged against the truck driver was his sudden stopping of his truck on the highway without adequate warning to those driving behind him. As a result of the sudden stop, plaintiff's automobile, which was traveling in the same direction and behind the truck, collided therewith to the damage of the automobile in the sum of $1,500. The petition further alleged that the defendant Bruce was carrying liability insurance, in that he was insured against loss by the defendant Employers' Mutual Casualty Company, for a maximum of $10,000. The petition also alleged in substance that the injury sustained by the plaintiff was covered by the language of the policy and by statutory proviso; whereby the plaintiff became entitled to maintain an action against said defendant insurance company for the loss sustained and to maintain such action jointly with an action against the insured. A copy of the policy was set forth in the petition and is before us for interpretation. It contains several conditions and qualifications compliance with which would be essential to the right of recovery thereon either by the insured or by the plaintiff. The question presented is whether the joining of plaintiff's respective causes of action against the tort-feasor and the insurance company is a misjoinder within the meaning of section 10963 of the Code. The following sections of the statute are involved:
[1][2] It may be noted at this point, in anticipation of later discussion, that a misjoinder of causes of action does not defeat the jurisdiction of the court. In order to avail himself of the right to separate the causes of action, the defendant must move for such separation as provided in section 10963. A failure to move is a waiver of the misjoinder, and the case will thereafter proceed as if the joinder were proper. It occasionally happens therefore that the records before us disclose unchallenged joinders of causes of action, which joinders could have been challenged under the cited section.
On the surface of the record in the case at bar, it is almost identical with Aplin v. Smith, 197 Iowa, 388, 197 N. W. 316, 317. The question presented in that case and in this is quite identical. The reasoning in that case is apparently decisive of this one. That case was followed in Elder v. Maudlin, 213 Iowa 758, 239 N. W. 577. The opinion in the Aplin Case devotes the following discussion to the question presented:
“Construing and applying the above statutes, we have held that a cause of action arising from tort may be joined with one arising on contract, if they are between the same parties in the same right, and have the same venue (Turner v. First Nat. Bank, 26 Iowa, 562;Foster v. Hinson, 76 Iowa, 714, 39 N. W. 682;Devin v. Walsh, 108 Iowa, 428, 79 N. W. 133;Jenks v. Lansing Lbr. Co., 97 Iowa, 342, 66 N. W. 231;Waters v. City of Sioux City, 193 Iowa, 72, 186 N. W. 451); that a cause of action at law may not be joined with a cause of action in equity (Stevens v. Chance, 47 Iowa, 602;Reed v. Howe, 28 Iowa, 250); that, although the liability arises on separate instruments, both under the express language of section 3465 may be made parties (Bennett Sav. Bank v. Smith, 171 Iowa, 405, 152 N. W. 717). An action against the owner and operator of a motor bus and an action on a policy by any one entitled to maintain the same naturally would be prosecuted at law. So far, therefore, as the jurisdiction of the court is concerned, they would be prosecuted by the same kind of proceedings.
As already appears, the policy insured James R. Smith, owner of the bus, against loss or damages such as were suffered by the plaintiff, and it is the contention of counsel for plaintiff that the contract was made for his benefit and that, under the statute and repeated decisions of this court, he is entitled to maintain an action against the casualty company thereon. Counsel also maintained that the action against the casualty company is in its nature an action in tort and not strictly an action on contract. It is, of course, conceded that appellant did not commit the tort, but it is argued that it assumed liability therefor in the policy.
* * * The contract of insurance is a contract of indemnity, and the liability arising thereunder is such as usually arises out of a contract of indemnity which is in its very nature distinguishable from an existing liability assumed by a third party. Plaintiff's cause of action arose after the contract of indemnity was executed. The insurer's liability was assumed for the protection of the insured and to indemnify him against such loss or damage as might subsequently result from the operation of his motor bus. At the time the policy was issued, there was no existing liability which appellant undertook to assume or could have assumed. It is true that appellant, by the terms of the policy, agrees to assume the defense of any action for damages brought against the insured for which indemnity was provided, and further agreed to pay any judgment obtained thereon against the insured. Many obvious reasons exist for the incorporation of the provision in the contract reserving to the insurer the right to conduct the defense of actions brought against the assured. The contract also authorized an action to be prosecuted against the insurer upon any judgment obtained against the insured if an execution issued on such judgment has been returned unsatisfied. To hold under the evidence and circumstances of this case that the action can be maintained jointly against the wrongdoer upon the tort, and against appellant upon its contract of indemnity would involve a violation of the statute and a conflict with our prior decisions. * * *
It follows, from what we have already said, that the ruling upon the motion to strike cannot be sustained, and the finding and judgment of the court thereon is accordingly reversed.”
The result thus announced in that case is inevitable in this unless the case is distinguishable as contended by appellee in his brief, and we proceed to the consideration of the plaintiff's contention.
Stated briefly the argument of the plaintiff is:
1. That the petition purports to set forth one cause of action only, and not two; that the statement of the cause of action against the tort-feasor is essential to the statement of the action against the insurance company; that both defendants are liable for the one cause of action thus stated.
2. That the plaintiff is not suing upon a private contract between the insured and the insurance company; that he is suing upon a statutory liability, which supersedes the private contract; that the statute by its terms permits the plaintiff to prosecute the action against the insurance company and to prosecute it jointly with the action against the tort-feasor.
3. That the motions of the respective defendants were inadequate in form, in that each defendant moved for the striking of the cause of action of the other, and failed to move for a dismissal of the cause as against himself.
[3] I. If the first contention of the appellee be valid, then Aplin v. Smith was wrongly decided. If only one cause of action is set forth in plaintiff's petition herein, then only one cause was set forth by the...
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