McCann v. Iowa Mut. Liab. Ins. Co. of Cedar Rapids, No. 45747.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHALE
Citation1 N.W.2d 682,231 Iowa 509
PartiesMcCANN v. IOWA MUT. LIABILITY INS. CO. OF CEDAR RAPIDS.
Decision Date13 January 1942
Docket NumberNo. 45747.

231 Iowa 509
1 N.W.2d 682

McCANN
v.
IOWA MUT. LIABILITY INS. CO. OF CEDAR RAPIDS.

No. 45747.

Supreme Court of Iowa.

Jan. 13, 1942.


Appeal from District Court, Boone County; T. G. Garfield, Judge.

Action on a policy of automobile liability insurance, brought under the provisions of section 9024-g1, 1935 Code of Iowa, providing right of action against insurer on judgment against insured. Trial to jury, and at the conclusion of all the evidence verdict directed in favor of defendant, and plaintiff appeals.

Affirmed.

[1 N.W.2d 684]

Doran, Doran & Doran, of Boone, for appellant.

Hallagan, Fountain, Steward & Cless, of Des Moines, and T. J. Mahoney, of Boone, for appellee.


HALE, Justice.

This action was brought by Devere McCann, seeking to recover from defendant, Iowa Mutual Liability Insurance Company of Cedar Rapids, a judgment rendered in favor of plaintiff against H. R. Downey, in the district court of Boone county, on March 21, 1939, on a verdict of a jury for injuries sustained in an automobile accident. The damage suit was appealed to the supreme court by the insurance company, and affirmed. The company furnished and paid for the attorneys for the defendant Downey, and paid the costs of the appeal. This case was McCann v. Downey, et al., 227 Iowa 1277, 290 N.W. 690.

This action was brought under section 9024-g1, Code of 1935, which is as follows: “All policies insuring the legal liability of the insured, issued in this state by any company, association or reciprocal exchange shall, notwithstanding any other provision of the statutes, contain a provision providing that, in event an execution on a judgment against the insured be returned unsatisfied in an action by a person who is injured or whose property is damaged, the judgment creditor shall have a right of action against the insurer to the same extent that such insured could have enforced his claim against such insurer had such insured paid such judgment.”

The judgment against Downey, issuance of the policy, and the fact that it was in force in accordance with its terms at the time of the collision, were all admitted by the defendant company; but such company denied that the policy was in force as to the particular accident involved for the reason that at the time and place of the accident the insured automobile was being operated by Melvin Downey illegally as to age, thus excluding coverage, under an exclusion clause reading as follows: “(c) Under Coverages A, B, C and D, while the automobile is operated by any person under the age of 14 years, or by any person in violation of any state, federal or provincial law as to age applicable to such person, or to his occupation, or by any person in any prearranged race or competitive speed test.”

By an amendment to its answer defendant set up the defense that by appearing and defending in the original case resulting in a verdict, and by appealing from the adverse judgment rendered against its insured, it did not waive and was not estopped from denying liability under the policy, for the reason that prior to such defense it had entered into certain reservation-of-rights agreements. These are certain agreements and a supplemental agreement providing in general that the defendant company would appear in any damage case against the insured, with the understanding that the insurance company should not be deemed to have waived its disclaimer of liability nor to have waived any of the provisions, conditions, limitations, or exclusions in the policy of insurance, and further that it would provide counsel, with the same understanding, such defense to be afforded without prior judicial determination of the question whether said accident in suit was covered by the terms of the policy, the question of policy coverage being in no way abandoned by its appearing in said suit or defending the same. These agreements, and supplemental agreement which provided for appeal, followed prior notice to the Downeys.

The policy in question covered a Chevrolet sedan, having been transferred from a Studebaker previously owned by H. R. Downey, who lived one-half mile north of the northeast city limits of Boone, and who had a fifteen-year-old son named Melvin. Melvin was, early in 1938, issued a school permit to drive an automobile, on application

[1 N.W.2d 685]

of his father. On October 27, 1938, Melvin obtained permission of his father to use the car, speaking about going to choir practice and to a “pep” meeting at the high school. Nothing was said, nor did the father know, that Melvin was going to drive west of the high school. The distance from the Downey home to the school building was about two and one-half miles. The boy drove to the Methodist church and attended choir practice; thence to the home of a companion. They both then went to the high school and stayed five or six minutes, but did not go into the building. They later met some young friends and proceeded in a southwesterly direction on highway No. 30, across the Des Moines river, and the accident happened about two and three-quarter miles southwest of the high school, or a total distance from Melvin Downey's home of about five and one-quarter miles. The party in the Downey car followed another car occupied by other young people, this car being driven by one Phillips, and with no particular destination. All the occupants of the cars lived in Boone. The “pep” meeting was an informal gathering, attended by some but not all of the teachers. Students were not required to attend, nor were there any classes.

Following the collision a damage suit was brought by Devere McCann against H. R. Downey and others, resulting in a verdict in favor of the plaintiff. Appeal was then taken to the supreme court and the cause was affirmed on March 12, 1940. See McCann v. Downey, supra. The principal point of controversy in that case was as to whether or not the car was driven with the consent of the owner. The judgment against Downey is unpaid and execution was issued and returned unsatisfied. There is no dispute as to this fact and that throughout all the proceedings in the former case H. R. Downey carried a policy of insurance, and that the same law firms represented him in the trial of the original case as represent the defendant in this case, and that the insurance company furnished said lawyers and paid for their services.

The exclusion clause in the policy is heretofore set out. Coverage clause A, referred to therein, provides: “I. Coverage A-Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.” The policy also provides: “II. Defense, Settlement, Supplementary Payments. It is further agreed that as respects insurance afforded by this policy under Coverages A and B the company shall (a) defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company; * * *”

I. Plaintiff's first assignment is that the court erred in sustaining the defendant's motion for a directed verdict, which motion was based on the theory that, under the exclusion clause heretofore set out, the operator, Melvin Downey, was violating the law applicable to the age of such driver. Plaintiff urges that if the driver was guilty of any violation of his limited permit it was as to use and not as to age, and that the court should have sustained plaintiff's motion for the same reason, and that the violation, if any, was as to restrictions, and was not a violation of the law as to age.

Section 205, chapter 134, Acts of the Forty-Seventh General Assembly, now section 5013.01, Code of 1939, provides: “No person, except those hereinafter expressly exempted shall drive any motor vehicle upon a highway in this state unless such person has a valid license as an operator or chauffeur * * *. No person shall operate a motor vehicle as a chauffeur unless he holds a valid chauffeur's license.” Section 208, chapter 134, Acts of the Forty-Seventh General Assembly, now section 5013.04, Code of 1939, is as follows: “The department shall not issue any license hereunder: 1. To any person, as an operator, who is under the age of sixteen years, except that the department may issue a restricted license as provided in [section 225] section 5013.19, Code, 1939, to any person who is at least fourteen years of age; * * *.” Section 224, chapter 134, Acts of the Forty-Seventh General Assembly, now section 5013.18, Code of 1939, provides for authority for the department issuing the license to impose restrictions suitable to the licensee's driving ability, with respect to the type of vehicle and as to other matters

[1 N.W.2d 686]

“including licenses issued under section 5013.19, as the department may determine to be appropriate to assure the safe operation of a motor vehicle by the licensee. * * *.” Section 225, chapter 134, Acts of the Forty-Seventh General Assembly, now section 5013.19, Code of 1939, is as follows: “Upon a written request of a parent or guardian, a restricted license may be issued to any person between the ages of fourteen and sixteen years, to be valid only in going to and from school.”

We have set out the applicable provisions of the Code, the first of which forbids driving by a person without a valid license; the second forbids the issuance of a license to a person under the age of sixteen years except as provided in Code section 5013.19. This last provision, in relation to minors, permits...

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18 practice notes
  • Hardwick v. Bublitz, No. 50713
    • United States
    • United States State Supreme Court of Iowa
    • February 12, 1963
    ...14 years old. These statutory provisions are enacted for the safety of the public. McCann v. Iowa Mutual Liability Insurance Company, 231 Iowa 509, 515, 1 N.W.2d 682. A violation of these provisions is negligence. They come within '* * * the manner, method of the use, and operation of vehic......
  • City of Carter Lake v. Aetna Cas. and Sur. Co., No. 78-1796
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 24, 1979
    ...299, 304 (Iowa 1970); Fullerton v. United States Cas. Co., 184 Iowa 219, 167 N.W. 700, 704 (1918); McCann v. Iowa Mut. Liability Ins. Co., 231 Iowa 509, 1 N.W.2d 682, 688-89 (1942); Roach v. Estate of Ravenstein, 326 F.Supp. 830, 835, 838 (S.D.Iowa 1971). Cf. Hully v. Aluminum Co. of Americ......
  • Hawkeye Cas. Co. v. Stoker, No. 32948
    • United States
    • Supreme Court of Nebraska
    • June 22, 1951
    ...for Use of Deitenbach v. State Farm Mutual Auto Ins. Co., 325 Ill.App. 421, 60 N.E.2d 269; McCann v. Iowa Mutual Liability Ins. Co., 231 Iowa 509, 1 N.W.2d 682; Wigington v. Ocean Accident & Guarantee Corporation, 120 Neb. 162, 231 N.W. 770; Myers v. Ocean Accident & Guarantee Corporation, ......
  • Town of Grundy Ctr. v. Marion, No. 45541.
    • United States
    • United States State Supreme Court of Iowa
    • January 13, 1942
    ...Moines v. Manhattan Oil Company, 193 Iowa 1096, 184 N.W. 823,188 N.W. 921,23 A.L.R. 1322, discusses the police power of a municipality [1 N.W.2d 682]and its power to declare by ordinance what shall be considered nuisances. The opinion states on page 1111 of 193 Iowa, on page 829 of 184 N.W.......
  • Request a trial to view additional results
18 cases
  • Hardwick v. Bublitz, No. 50713
    • United States
    • United States State Supreme Court of Iowa
    • February 12, 1963
    ...14 years old. These statutory provisions are enacted for the safety of the public. McCann v. Iowa Mutual Liability Insurance Company, 231 Iowa 509, 515, 1 N.W.2d 682. A violation of these provisions is negligence. They come within '* * * the manner, method of the use, and operation of vehic......
  • City of Carter Lake v. Aetna Cas. and Sur. Co., No. 78-1796
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 24, 1979
    ...299, 304 (Iowa 1970); Fullerton v. United States Cas. Co., 184 Iowa 219, 167 N.W. 700, 704 (1918); McCann v. Iowa Mut. Liability Ins. Co., 231 Iowa 509, 1 N.W.2d 682, 688-89 (1942); Roach v. Estate of Ravenstein, 326 F.Supp. 830, 835, 838 (S.D.Iowa 1971). Cf. Hully v. Aluminum Co. of Americ......
  • Hawkeye Cas. Co. v. Stoker, No. 32948
    • United States
    • Supreme Court of Nebraska
    • June 22, 1951
    ...for Use of Deitenbach v. State Farm Mutual Auto Ins. Co., 325 Ill.App. 421, 60 N.E.2d 269; McCann v. Iowa Mutual Liability Ins. Co., 231 Iowa 509, 1 N.W.2d 682; Wigington v. Ocean Accident & Guarantee Corporation, 120 Neb. 162, 231 N.W. 770; Myers v. Ocean Accident & Guarantee Corporation, ......
  • Town of Grundy Ctr. v. Marion, No. 45541.
    • United States
    • United States State Supreme Court of Iowa
    • January 13, 1942
    ...Moines v. Manhattan Oil Company, 193 Iowa 1096, 184 N.W. 823,188 N.W. 921,23 A.L.R. 1322, discusses the police power of a municipality [1 N.W.2d 682]and its power to declare by ordinance what shall be considered nuisances. The opinion states on page 1111 of 193 Iowa, on page 829 of 184 N.W.......
  • Request a trial to view additional results

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