Mortenson v. Hawkeye Casualty Co.
| Decision Date | 08 February 1944 |
| Docket Number | 46393. |
| Parties | MORTENSON v. HAWKEYE CASUALTY CO. |
| Court | Iowa Supreme Court |
Whitfield, Musgrave & Selvy, of Des Moines, for appellant.
R Lee Black, of Des Moines, and James Devitt, of Oskaloosa, for appellee.
J. S Stafford was a general and recording agent for appellant Hawkeye Casualty Co. He was supplied with blank policies endorsements, etc., and was authorized to countersign and issue them on behalf of appellant. He also collected premiums and adjusted some losses.
Appellee was a dealer in used automobiles. He bought cars in Iowa and Illinois, and disposed of them in California. He arranged with a travel bureau to have these cars driven to California without direct expense to him. The travel bureau secured several persons to occupy each car, charged them $10 or $12 each, selected one of them as driver and gave him $25, which was the approximate cost of gasoline and oil to be used. The bureau retained the balance for its service charge.
Appellee explained this arrangement to Stafford and inquired about insurance "to cover the cars out to California", and Stafford said his agency "would cover the cars going to California", and quoted rates. In the summer of 1941, appellee insured through Stafford about six cars thus sent to California. It was appellee's practice to procure a policy when each car started its journey and to cancel the same, presumably at short rate, upon its arrival in California. The trial court found that "no facts of any kind or character were hidden or attempted to be hidden" from Stafford by appellee. We concur in that finding.
November 25, 1941, appellee applied to Stafford's agency for insurance on five described cars he was sending to California. He was told he was "covered", and apparently the agency issued the policies later in the same day after appellee had departed. The car in question in this case, a Ford, was occupied by three persons, secured by the travel bureau, one of whom was designated as the driver. November 27, 1941, while in Wyoming en route to California, it was damaged beyond repair in a collision.
Appellee, who had driven another car to California, returned about December 6, 1941, called at the Stafford agency, reported the damage to the Ford and was told "everything was in order" and the loss would be paid. He cancelled the policies on the other four cars, and paid the amount due for premiums on the five policies. Stafford had held the policies awaiting appellee's return, and appellee then first saw the policy on the damaged car. Later appellant refused payment, and appellee instituted action in equity to enforce collection, which resulted in judgment against appellant for $375 plus interest, and this appeal therefrom. The case was tried prior to July 4, 1943, and questions of procedure will be considered under rules then in effect.
Count 1 of the petition sought recovery on the policy as issued. Count 2 sought reformation of the policy to conform to the alleged agreement of the parties, by moving therefrom a statement on the face of the policy, "The automobile will not be *** used to carry persons for a charge, ***", and a statement appearing under conditions, limitations and agreements, "This policy does not apply while the automobile is used *** for carrying persons for a charge, ***", and demanded recovery on the policy as reformed.
Appellant moved that appellee be required to elect between said counts for the reason that the same were inconsistent with each other in that Count 1 was based upon a written contract (policy of insurance), while Count 2 asserted the writing did not evidence the actual understanding and agreement of the parties. The motion was renewed at the conclusion of the evidence for appellee, and was sustained by the court. Appellee excepted to the ruling and order and elected to rely upon Count 1.
I. Appellee contends the order requiring him to elect was erroneous. Upon appeal by the adversary, a successful party, who seeks merely an affirmance of a judgment, may show that, on the face of the record, he is entitled to the judgment because of errors committed against him though errors had also been committed against appellant. McCuddin v. Dickinson, 230 Iowa 1141, 300 N.W. 308; Ford v. Dilley, 174 Iowa 243, 156 N.W. 513. The judgment in this case was based upon Count 1. If the court should have considered the case on both counts, and if appellee was entitled to the judgment on the theory presented in Count 2, it should be affirmed even though the judgment, as based upon Count 1, was error against appellant.
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