Mitchell v. Automobile Underwriters of Des Moines
| Decision Date | 25 October 1938 |
| Docket Number | 44380. |
| Citation | 281 N.W. 832,225 Iowa 906 |
| Parties | MITCHELL v. AUTOMOBILE UNDERWRITERS OF DES MOINES. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Loy Ladd, Judge.
Action at law upon an automobile liability insurance policy instituted by plaintiff to recover from defendant the amount of a judgment previously obtained by the plaintiff against the driver of the automobile covered by the policy. Following trial the jury returned a verdict in favor of plaintiff, and judgment was rendered thereon. Defendant appeals.
Affirmed.
Gibson, Stewart & Garrett, of Des Moines, for appellant.
McMartin, Herrick, Sloan & Langdon, of Des Moines, for appellee.
Appellant herein, a corporation, is attorney-in-fact for the subscribers at the State Automobile Insurance Association of Des Moines, an association consisting of individuals, firms corporations and associations, that have entered into an agreement which vests in the said Automobile Underwriters the power to underwrite reciprocal insurance contracts with each other in conformity with the provisions of Chapter 408 of the Code of Iowa, § 9083 et seq.
On the 10th of June, 1935, this association, through its attorney-in-fact, the Automobile Underwriters, issued an insurance policy to said Automobile Underwriters as the named assured; in which the liability coverage included loss to the assured from the liability imposed by law upon the assured on account of bodily injuries suffered or alleged to have been suffered, by any person or persons as the result of an accident due to the ownership, maintenance or use of a certain automobile described in said policy. Said policy likewise provided that the insurance thereunder was available, in the same manner and under the same conditions, to any person or organization while legally using said automobile, provided that such use was with the permission of the named assured. Said policy further provided that " should an execution on a final judgment against the assured in an action covered by this policy be returned unsatisfied, the judgment creditor shall within one year after a final judgment is rendered against the assured have a right of action against the Association to the same extent that the assured would have had had such assured paid such final judgment."
The automobile described in said policy was owned by the named assured, the Automobile Underwriters, and on December 15, 1935, while being operated by one Hodge Jones, Jr., was involved in a collision with an automobile driven by plaintiff-appellee herein, Ed Mitchell, resulting in personal injuries to appellee. Following said collision appellee herein instituted an action against said Hodge Jones, Jr., in the District Court of Polk County, resulting in a judgment in favor of appellee and against Hodge Jones, Jr. Following the rendition of said judgment, execution was issued thereon and a return made showing said execution returned unsatisfied.
Appellee then instituted the instant action to recover from appellant the amount of said unsatisfied judgment, together with interest and costs; his petition containing an allegation that at the time of the collision on December 15, 1935, the said Hodge Jones, Jr., was operating said automobile with the permission of the named assured, Automobile Underwriters, resulting in said Hodge Jones, Jr., being an additional assured under and by virtue of the terms of said policy.
The facts relating to the execution of the policy, its being in force at the time of the collision, the ownership of the automobile by the Automobile Underwriters, the operation thereof by Hodge Jones, Jr., the rendition of the judgment and the issuance of an execution and return thereon unsatisfied, were all established without dispute; resulting in the only controverted fact being whether or not the automobile in question was at the time of the collision operated by Hodge Jones, Jr., with the permission of the named assured, Automobile Underwriters. The only testimony offered by appellee to substantiate his claim that said automobile was being operated with the consent of the Automobile Underwriters, in addition to its ownership thereof, consisted of a counterclaim in the former action between appellee and Hodge Jones, Jr. (which counterclaim will be hereinafter referred to).
I. A motion to direct verdict in its favor was interposed by appellant at the close of appellee's case, and again interposed at the close of all the testimony. Appellant now contends that the trial court erred in failing to sustain said motion for the reason that there was a failure of proof that Hodge Jones, Jr., was at the time of the collision using the automobile with the permission of the named assured, resulting in a failure of proof that said Hodge Jones, Jr., was an additional assured within the meaning of the policy. It being appellant's contention that the evidence disclosed without dispute, that Hodge Jones, Jr., was at the time of the collision using the automobile without the permission of the named assured. In view of the policy provision that the insurance shall be available to any person or organization while legally using the automobile therein described, provided such use was with the permission of the named assured, the determination of whether or not said Hodge Jones, Jr., was an additional assured, depends entirely upon whether or not his operation of the automobile was with the permission of appellant. As the result thereof, the determination of the correctness of the court's rulings in overruling said motion depends entirely upon whether the evidence was sufficient to warrant the court in submitting to the jury the question of whether or not the use by Hodge Jones, Jr., was with the permission of the Automobile Underwriters.
In view of the admitted ownership of the automobile by appellant, we are at the outset confronted with the settled rule that such ownership merely makes out, prima facie, that the automobile was being operated with the consent of appellant; and that to avoid such a finding, that there must be some showing to the contrary. Hunter v. Irwin, 220 Iowa 693, 263 N.W. 34; Curry v. Bickley, 196 Iowa 827, 195 N.W. 617; Robinson v. Shell Petroleum Corp., 217 Iowa 1252, 251 N.W. 613. As is stated in Hunter v. Irwin, supra, " this rule of itself is of no greater weight than is required to compel the owner to identify those operating the vehicle and explain by what authority, if not his own, it was being driven" [page 37]; and that, " the inference involved in the rule is recognized as a weak one, but sufficient to accomplish the purposes of revealment above mentioned." As stated in Curry v. Bickley, supra, this inference " does not require that every case shall go to the jury, where the undisputed and uncontroverted evidence establishes the facts so conclusively that the inference is overcome." [Page 619.] In the case of Heavilin v. Wendell, 214 Iowa 844, 241 N.W. 654, 83 A.L.R. 872, this Court held that the inference involved from said rule may be negatived by proof that there was no consent given to drive the car and that the evidence therein conclusively overcame the inference founded on ownership. Without detailing the evidence given by appellant, it may be conceded that the entire evidence, if it were not for the counterclaim, to be hereinafter referred to, would bring this action squarely within the rule of the following cases: Hunter v. Irwin, supra; Robinson v. Shell Petroleum Corp., supra; Heavilin v. Wendell, supra; Curry v. Bickley, supra, and require a finding that the evidence established conclusively that the automobile was not operated with the permission of the named assured, Automobile Underwriters. However, in the action brought by appellee against Hodge Jones, Jr., appellant herein was originally made a party-defendant. In that action appellant, in addition to filing an answer denying any liability, filed a counterclaim against the plaintiff, therein alleging that the collision on December 15, 1935, was occasioned by the negligence of plaintiff, and asking judgment against plaintiff for damages to its automobile. In said counterclaim is found the following paragraph: " That the defendant, Automobile Underwriters, and the driver of defendant's car, were free from negligence and in no way...
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