Henderson v. Hawkeye-Security Ins. Co.

Decision Date15 November 1960
Docket NumberHAWKEYE-SECURITY,No. 49896,49896
Citation252 Iowa 97,106 N.W.2d 86
PartiesJohn HENDERSON, Jr., and Ruby Henderson, Husband and Wife, Appellees, v.INSURANCE COMPANY, Appellant.
CourtIowa Supreme Court

Napier & Fehseke, Fort Madison, for appellant.

Joseph L. Phelan, Fort Madison, for appellees.

LARSON, Chief Justice.

In a declaratory action brought by plaintiffs the trial court found that notice of injury specifically required was not given insurer within a reasonable time, and that although there was no fraud or deceit involved and no reasonable mistake shown so as to excuse the failure to give a timely notice, and that the occurrence was not trivial, yet it was necessary for the defendant to affirmatively show prejudice in order for it to renounce its contract with plaintiffs. Having failed to do so, the court held that plaintiffs were entitled to recover the sum of $1,000 medical benefits under the terms of the policy.

Defendant assigns as error: (1) that plaintiffs' failure to file a reply to affirmative allegations in its answer entitled it to a judgment; (2) that the court erred in finding as a matter of fact that plaintiff was injured in such a manner as to come within the terms of the policy; (3) that it erred in finding that, despite the unexcused failure of plaintiffs to comply with the conditions of the policy on notice, defendant had the burden of showing prejudice substantially hampering its defense in order to avoid liability thereunder; and (4) the court's finding that defendant failed to show prejudice. We shall consider only the first three assignments, for clearly the crux of this case is found in Assignment No. 3.

I. It would seem of considerable importance here to determine whether this case was tried as a legal or equitable action. As it was tried below, we consider it on appeal. If it was tried as an equitable action, we review it de novo, and if in law, findings of fact by the trial court, supported by substantial evidence, are binding upon us. Leytem v. Fireman's Fund Indemnity Co.,249 Iowa 524, 529, 85 N.W.2d 921, and citations.

The legal or equitable nature of a declaratory judgment proceeding is to be determined by the pleadings, the relief sought, and the nature of each case. Wetzstein v. Dehrkoop, 241 Iowa 1237, 1246, 44 N.W.2d 695, and authorities cited therein.

Both parties were advised by the court that the matter would be treated as an action on a contract. We have carefully examined the pleadings, as well as taken note of the relief sought, and agree with the trial court.

Of course, controversies over coverage of an insurance contract may be determined in an action for declaratory judgment, and they will be entertained by our courts unless it appears the judgment will not finally settle the rights of the parties. Rich Mfg. Co. v. Petty, 241 Iowa 840, 42 N.W.2d 80; Hartford Acc. & Indem. Co. v. O'Connor-Regenwether Post, 247 Iowa 168, 73 N.W.2d 12; Rule 261, R.C.P., 58 I.C.A. Also see article on Declaratory Judgments by T. M. Ingersoll, 29 Iowa Law Review, page 62. The trial court here correctly held that a decision would finally settle the rights of the parties, and treated the case as a law action tried to the court. We do likewise.

II. There is no merit in defendant's contention that the court erred in failing to enter judgment for defendant due to plaintiffs' failure to file a reply, or that this failure admitted all of the affirmative allegations in defendant's answer. Reliance is placed upon Rules 73, 85, 102, 103, and 104, R.C.P., but we have repeatedly said that where the issues involved, as they are here, are clearly raised by the petition and answer, specific affirmative allegations as to those issues asserted in the answer need no reply under Rule 102, R.C.P. Verlinden v. Godberson, 238 Iowa 161, 25 N.W.2d 347; Shalla v. Shalla, 237 Iowa 752, 23 N.W.2d 814. We are satisfied that all issues involved in the affirmative allegations of the answer were passed upon by the trial court, and upon that issue there was no reversible error.

III. From the record we find that on March 8, 1956, defendant issued a standard combination automobile policy to John Henderson, Jr., which provided under Coverage C automobile medical payments of a maximum of $1,000 for each person injured while in or upon or while entering into or alighting from plaintiff's automobile.

Under 'Conditions' listed in this policy, the following appears: '1. Notice of Accident--Coverages A, B and C. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.' (Emphasis supplied.)

Condition 5 relates to the limit of liability under C to $1,000 for each person injured. Condition 8 entitled 'Action Against Company--Coverage C' states: 'No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy, nor until thirty days after the required proofs of claim have been filed with the company.' (Emphasis supplied.) Condition 11 further provides: 'As soon as practicable the injured person or someone on his behalf shall give to the company written proof of claim, under oath if required, * * *.'

Thus, by the plain terms of the policy, as a condition precedent to maintenance of an action, the insured, or someone on his behalf, must give the company, or its authorized agent, as soon as practicable, written notice of the accident and injury.

IV. Ruby Henderson, one of the plaintiffs herein, was seriously injured on August 4, 1956, when she was struck by another automobile as she was standing beside the stalled automobile covered by this policy. It is conceded that her hospital and medical expenses were bona fide and that they exceeded $1,000.

It was, of course, her duty as claimant to prove she was injured in a manner covered by the policy provisions, which in this case was while she was 'in or upon or while entering into or alighting from the automobile.'

By the clear weight of authority actual physical contact with the insured's automobile, when shown, is sufficient to sustain a recovery. It is the rule generally recognized that such words as 'while in or upon' in an insurance policy of this nature, require a broad and liberal construction. Sherman v. New York Casualty Co., 78 R.I. 393, 82 A.2d 839, 39 A.L.R.2d 947; Fomby v. World Ins. Co., D.C., 115 F.Supp. 913; Madden v. Farm Bureau Mut. Automobile Ins. Co., 82 Ohio App. 111, 79 N.E.2d 586; Christoffer v. Hartford Acc. & Indem. Co., 123 Cal.App.2d Supp. 979, 267 P.2d 887; Goodwin v. Lumbermen's Mut. Cas. Co., 199 Md. 121, 85 A.2d 759; Young v. State Auto Ins. Ass'n, 72 Pa.Dist. & Co. R. 394; Katz v. Ocean Acc. & Guarantee Corp., 202 Misc. 745, 112 N.Y.S.2d 737; Wolf v. American Cas. Co., 2 Ill.App.2d 124, 118 N.E.2d 777. See Annotation 39 A.L.R.2d 947.

Where one has alighted and is not in physical contact with the car, but is standing or walking away from it, many authorities reject claims under such provisions. Ross v. Protective Indemnity Co., 135 Conn. 150, 62 A.2d 340; New Amsterdam Casualty Co. v. Fromer, D.C.Mun.App., 75 A.2d 645, 19 A.L.R.2d 509; Eshelman v. Wilson, 83 Ohio App. 395, 80 N.E.2d 803; Turner v. Fidelity & Casualty Co., 274 Mo. 260, 202 S.W. 1078, L.R.A.1918E, 381.

The issue here became one of fact, and while we may not have agreed with the trial court's finding on this question, we think it was amply supported by the evidence and is conclusive of that fact. Leytem v. Fireman's Fund Indemnity Co., supra. There is evidence in the record that Ruby Henderson, when struck down, was leaning against the car attempting to put down the hood which she had raised to look for the cause of the stall. There was no evidence inconsistent with such testimony by Mrs. Henderson, although defendant argues that her testimony in a previous case implied that she was not in contact with her automobile when struck. It is true that in a previous damage action against the third party who struck her she did not state she was leaning against her car. However, her statement that she was 'standing at the left front corner of my automobile' is not in conflict with her statements herein. Her position revealed by the investigations and testimony does not refute the contact contention, and her direct statement that 'I was leaning against the automobile', if believed, is competent evidence and ample proof of such contact.

V. By the great weight of authority in this country where an insurance policy provides that the insured shall give notice and furnish proofs of loss within a reasonable time, and this is made a condition precedent to the right to bring an action on the policy, no recovery can be had thereon unless some legal justification or excuse for the delay appears. Woodard v. Security Ins. Co., 201 Iowa 378, 207 N.W. 351; Hessen v. Iowa Auto. Mut. Ins. Co., 195 Iowa 141, 190 N.W. 150, 30 A.L.R. 657; Meyer v. Iowa Mutual Liability Ins. Co., 240 Ill.App. 431, 436; Phoenix Cotton Oil Co. v. Royal Indemnity Co., 140 Tenn. 438, 205 S.W. 128, 130; Lee v. Metropolitan Life Ins. Co., 180 S.C. 475, 186 S.E. 376, 381; Jefferson Realty Co. v. Employers' Liability Assur. Corp., 149 Ky. 741, 149 S.W. 1011, 1014; Sherwood Ice Co. v. United States Casualty Co., 40 R.I. 268, 100 A. 572, 576; Employers' Liability Assur. Corp. v. Perkins, 169 Md. 269, 181 A. 436, 442; St. Louis Architectural Iron Co. v. New Amsterdam Casualty Co., 8 Cir. (Mo.), 40 F.2d 344, 347, certiorari denied 282 U.S. 882, 51 S.Ct. 86, 75 L.Ed. 778; Hawkeye-Security Ins. Co. v. Myers, 7 Cir. (Ill.), 1954, 210 F.2d 890; Preferred Acc. Ins. Co. of New York v. Castellano, ...

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