Hartford Acc. & Indem. Co. v. O'Connor-Regenwether Post # 3633, Veterans of Foreign Wars, CONNOR-REGENWETHER

• Decision Date: 15 November 1955
• Docket Number: No. 48836,CONNOR-REGENWETHER,48836
• Citation: 247 Iowa 168,73 N.W.2d 12
• Parties: Page 12 73 N.W.2d 12 247 Iowa 168 HARTFORD ACCIDENT & INDEMNITY COMPANY, a corporation, Appellant, v. O'POST #3633, VETERANS OF FOREIGN WARS, and Dennis Ahern and Alice Ahern, Appellees. Supreme Court of Iowa
• Court: Iowa Supreme Court

Page 12

73 N.W.2d 12

247 Iowa 168

HARTFORD ACCIDENT & INDEMNITY COMPANY, a corporation, Appellant v O'CONNOR-REGENWETHER POST #3633, VETERANS OF FOREIGN WARS, and Dennis Ahern and Alice Ahern, Appellees.

No. 48836.

Supreme Court of Iowa.

Nov. 15, 1955.

Jordan, Jordan, McConlogue & Pence, Cedar Rapids, for appellant.

M. Stapleton, Dubuque, and Schoenthaler & Lee, Maquoketa, for appellees.

WENNERSTRUM, Justice.

The plaintiff's petition seeks a declaratory judgment relative to a policy of insurance written by it and insuring O'Connor-Regenwether Post No. 3633, Veterans of Foreign Wars, located at Maquoketa, Iowa. The defendant post filed a motion to dismiss the plaintiff's petition which was sustained by the trial court. It also denied the plaintiff's application for a temporary injunction pending the determination of the action for declaratory judgment. The plaintiff has appealed.

The present litigation has developed by reason of a prior action brought against the post by Dennis Ahern and Alice Ahern. They therein sought damages for the death of their 25 year old son as the result of a collision of two automobiles in one of which the son was riding. It is the claim of the parents of the deceased son representatives of the post along with others served intoxicating liquor or beer to the occupants of the two automobiles while they were intoxicated. It is claimed by reason of the foregoing facts the collision resulted. The action was brought under the provisions of what is generally referred to as the Iowa Dram Shop Laws. Sections 129.1-129.12, 1954 Code of Iowa, I.C.A. In this first action the issues have not been finally determined.

Following the filing of the suit by the Aherns the post made demand of the insurance company to defend and protect it in the lawsuit brought against it. The insurance company refused the demand made upon it and maintained under the terms of its insurance contract it was not obligated to defend its insured against a claim as made in the action brought by the Aherns.

The insurance company's policy was of a landlords' and tenants' liability nature and purported to cover the post's premises. It was therein agreed by the company to pay on behalf of the insured all sums which it should become obligated to pay as damages because of bodily injury, sickness or disease, including death sustained by any person caused by an accident and arising out of the maintenance or the use of the post premises and all operations necessary or incidental thereto.

It is the plaintiff's contention the trial court erred (1) in sustaining the post's motion to dismiss the petition for declaratory judgment and application for temporary injunction on the ground the petition set up no basis of necessity for a declaratory judgment, (2) in sustaining the motion to dismiss and in refusing to enter a temporary injunction on the ground no final judgment which might be rendered would be res adjudicata of the rights of the parties; (3) in holding any judgment entered in the declaratory judgment action would be of a prophetic nature; (4) that the action was premature.

I. 58 I.C.A.Rules 261 to 269, inclusive, R.C.P. relate to actions for declaratory judgment. In Rule 261 it is stated 'Courts of record' in declaratory judgment proceeding; '* * * shall declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * *' and in Rule 262 it is provided: 'Any person interested in a contract, oral or written, * * * or whose rights, * * * are affected by * * * contract * * * may have determined any question of the construction or validity thereof or arising thereunder, and obtain a declaration of rights, status or legal relations thereunder.' We held in Katz Investment Co. v. Lynch, 242 Iowa 640, 647, 47 N.W.2d 800, 805, '* * * declaratory relief will not ordinarily be granted where there is no actual or justiciable controversy between the parties and a mere advisory opinion is sought. * * *' See also Melsha v. Tribune Pub. Co., 243 Iowa 350, 353, 51 N.W.2d 425. We held in State v. Central States Elec. Co., 238 Iowa 801, 820, 28 N.W.2d 457, as stated in the rule the purpose of declaratory relief is to determine a right, status and relation.

II. We consequently must determine whether under the pleadings here involved there is 'an actual controversy' between the parties. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 1941, 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, in commenting on this question the Supreme Court of the United States stated: '* * * Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interest, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment * * *' In the cited case the facts are somewhat similar to the instant case. A plaintiff sought damages against an insured as the result of an automobile-truck collision. The insurer of the truck involved then brought an action for declaratory judgment, wherein it was alleged the insurer was not bound to defend an action brought against the insured. A demurrer to the petition was sustained in the federal district court and was affirmed in the Circuit Court of Appeals. 6 Cir., 111 F.2d 214. The Supreme Court of the United States reversed, holding as above stated.

A declaration of nonliability is within the scope of a justiciable controversy. Maryland Casualty Co. v. Hubbard, D.C., 22 F.Supp. 697, 699. In State Farm Mut Auto. Ins. Co. v. Mossey, 7 Cir., 1952, 195 F.2d 56,...