Harrison v. Allied Mut. Cas. Co.
| Decision Date | 06 March 1962 |
| Docket Number | No. 50560,50560 |
| Citation | 253 Iowa 728,113 N.W.2d 701 |
| Parties | William HARRISON, Appellant, v. ALLIED MUTUAL CASUALTY COMPANY, Appellee. ALLIED MUTUAL CASUALTY COMPANY, Third-Party Plaintiff, v. CENTRAL NATIONAL INSURANCE COMPANIES OF OMAHA, Third-Party Defendant. |
| Court | Iowa Supreme Court |
White, White, Prichard & Flores, Storm Lake, for appellant.
Herrick, Ary & Cook, Cherokee, for appellee.
This is an appeal from an order of the trial court sustaining defendant's motion to dismiss.
It is plaintiff's contention that the ruling of the trial court was based on matters not within the scope of proper inquiry in considering a motion to dismiss. We agree.
Chapter 516 of the Code, I.C.A. provides for a right of action against a liability insurance carrier in the event an execution against the insured is returned unsatisfied.
Plaintiff brought action at law to enforce liability against defendant as an insurer of plaintiff's judgment debtor.
The petition alleged: the recovery of judgment against Gerald C. Sump and an unsatisfied execution; issuance of a policy of liability insurance by defendant to Clarence Sump, father of Gerald C., in which defendant agreed to pay damages for which the son was legally liable; that in the trial of the action resulting in the judgment, defendant assumed control and management of the defense and waived and is now estopped to deny coverage and liability under its policy.
Defendant answered denying the material allegations of plaintiff's petition. By affirmative defense, defendant alleged that the primary liability, if any, was in the Central National Insurance Companies of Omaha under a policy of insurance covering the car involved in the accident and that the finding of fact by the jury in the original case was such as to absolve defendant from liability. By amendment, defendant attached a copy of its policy issued to Clarence Sump.
The affirmative defenses were based on allegations of fact not appearing on the face of plaintiff's petition.
Over four months after filing answer, defendant filed a motion to dismiss supported by affidavit. The motion and affidavit allege facts claimed by defendant as a defense to plaintiff's claim.
The trial court sustained the motion to dismiss. The ruling is based on the court's finding of facts not appearing in plaintiff's petition. Assuming but not deciding that the matters pleaded by defendant would constitute a complete defense, proof thereof by evidence or admission would be required. Proof or assumption thereof is not germane to a motion attacking plaintiff's petition.
In Bales v. Iowa State Highway Commission, 249 Iowa 57, 62, 86 N.W.2d 244, 247, we said:
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In Herbst v. Treinen, 249 Iowa 695, 699, 88 N.W.2d 820, 823,...
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Berger v. General United Group, Inc.
...in the challenged pleading. State ex rel. Krupke v. Witkowski, 256 N.W.2d 216, 218 (Iowa 1977); Harrison v. Allied Mutual Casualty Company, 253 Iowa 728, 730-731, 113 N.W.2d 701, 702 (1962). We have said such averments are no proper part of the motion and must be ignored. Id.; Herbst v. Tre......
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Stearns v. Stearns
...264 (1965). A motion to dismiss 'is not a proper vehicle for the submission of affirmative defenses.' Harrison v. Allied Mutual Casualty Co., 253 Iowa 728, 731, 113 N.W.2d 701, 702. Despite the foregoing authorities, the trial court in the case at bar heard several days of testimony on the ......
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...vehicle for submission of affirmative defenses which form the entire basis for defendant's motion. Harrison v. Allied Mutual Casualty Co., 253 Iowa 728, 731, 113 N.W.2d 701, 702, 703. The general rule is that denial of a temporary injunction, or its dissolution if granted, does not deprive ......