Pipan v. Ætna Ins. Co.
| Decision Date | 13 August 1929 |
| Docket Number | No. 5642.,5642. |
| Citation | 226 N.W. 498,58 N.D. 435 |
| Parties | PIPAN v. ÆTNA INS. CO. |
| Court | North Dakota Supreme Court |
A valid judgment upon a question directly involved in a suit is conclusive as to that question in any other suit between the same parties, and this rule applies in a second suit between the same parties upon a different cause of action. It is held, in the instant case, that the plaintiff is bound by the determination in a former action that the property insured was the property of her husband in whose name an insurance policy had been issued, and further bound by the determination that no contractual relations concerning the insurance of any property existed between the plaintiff and the defendant.
Where a plaintiff states in a complaint two causes of action founded upon the same transaction, which are based upon the same facts and are obviously inconsistent, the trial court may properly require the plaintiff to elect.
Appeal from District Court, McHenry County; C. W. Buttz, Judge.
Action by Antonia Pipan against the Ætna Insurance Company. From an adverse judgment, plaintiff appeals. Affirmed.Jacobsen & Murray, of Mott, and S. P. Rigler, of Hebron, for appellant.
Lawrence, Murphy & Nilles, of Fargo, for respondent.
[1] This case has been tried three times in district court, and this is the second appeal by plaintiff to the Supreme Court. The former appeal is reported in 55 N. D. 585, 214 N. W. 901.
The plaintiff, Antonia Pipan, brought this action originally on a complaint alleging that she was the owner of a building in the city of Towner, N. D., together with certain personal property consisting of blacksmith tools and material contained therein; that Frank Pipan was the husband and agent of plaintiff, and that she authorized him to insure said property for her; that Frank Pipan negotiated for fire insurance in the sum of $2,000 upon said property for her; that one Berget was the agent of the defendant; that afterwards, and on April 12, 1923, the defendant, by its said agent, executed and delivered to Frank Pipan a policy in the sum of $2,000; that Berget, by mistake, inserted the name of Frank Pipan in said policy instead of the name of plaintiff as the beneficiary therein; that while said policy was in force the property was destroyed by fire; that neither the plaintiff, nor her agent, Frank Pipan, discovered the error in the policy until after the loss. The complaint, in addition to a demand for a money judgment, sets forth the following prayer for relief: “That said policy of insurance be reformed by showing the name of plaintiff as insured, instead of Frank Pipan, if reformation is necessary.”
The defendant, in its answer to said complaint, denied that there was any mistake in the name of the insured in said policy, and further denied that the plaintiff was the owner of the property covered by said policy. Issue was joined on the question of mutual mistake, and on the question of the ownership of the property.
The case was tried before a jury, and a verdict returned in favor of the plaintiff.
Defendant made a motion for judgment notwithstanding the verdict or for a new trial, and on this motion a new trial was granted.
Judge Burr, who presided at the first trial of this case in the district court, in his memorandum opinion granting the motion for a new trial, specifically found that there was no contractual relation between Antonia Pipan and the defendant; that there was no mutual mistake; that it was the intention of Frank Pipan to insure the property as his own, and not as the property of Antonia Pipan. He further found that the evidence established that Antonia Pipan was not the owner of the property covered by the policy, but that the same was owned by Frank Pipan.
Subsequently the case came on for a second trial before Judge Buttz, upon the same complaint and answer. At the close of the testimony, on motion of defendant that the case was an equitable one and for the court to decide, the judge dismissed the case upon its merits. In his findings of fact and conclusions of law the judge held that there was no contractual relation concerning any property or insurance thereon, existing between Antonia Pipan and the defendant; also, that the property involved in said action was the property of Frank Pipan, and not the property of Antonia Pipan.
An appeal was perfected by plaintiff from this decision of Judge Buttz, which decision was affirmed by this court. Pipan v. Ætna Insurance Co., 55 N. D. 585, 214 N. W. 901.
Afterwards plaintiff brought the present action in district court upon a complaint setting forth two causes of action. As a first cause of action she alleged an oral contract to insure her property. For a second cause of action plaintiff realleged the first six paragraphs of the first cause of action, and further alleged that the defendant, with full knowledge of all the facts set forth in the first cause of action, did issue the policy in the name of Frank Pipan; that said policy was, prior to the commencement of the present action, duly assigned by Frank Pipan to plaintiff.
The defendant interposed a demurrer to the complaint in the present action, on the ground that two causes of action had been improperly united; also an answer, wherein the defendant denied any contract, either oral or written, with Antonia Pipan, and which answer further alleged that the issues in this action had been determined and adjudicated in the former action, and that plaintiff, by reason thereof, is barred and estopped from maintaining the present action.
At the commencement of the trial defendant made a motion that plaintiff be compelled to elect as to which cause of action she would rely on. The defendant's demurrer and motion to elect were, at the commencement of the trial, overruled; but at the close of the testimony Judge Buttz required the plaintiff to elect as to which cause of action she would proceed under.
After protest by counsel, plaintiff elected to proceed on the first cause of action; said cause of action being upon an alleged oral contract of insurance. The case was submitted to the jury on the first cause of action, and a verdict returned in favor of plaintiff.
Afterwards defendant made a motion for judgment notwithstanding the verdict or for a new trial. On the hearing of this motion Judge Buttz made an order setting aside the verdict of the jury, and ordering judgment in favor of defendant on the merits.
From the judgment entered on this order plaintiff has perfected this appeal.
Two major questions are presented by this appeal:
1. Is plaintiff's present cause of action on the contract for insurance barred by virtue of res adjudicata, by reason of the prior action and judgment adverse to her?
2. Did the court err in requiring plaintiff to elect as to which cause of action she would go to the jury on?
The first and second trials of this case were based on the same complaint and answer. The main issues were, viz.: First, in the negotiations between Frank Pipan and defendant's agent, was...
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Redlinger & Hanson Co. v. Parker, 6027.
... ... Pipan v. tna Ins. Co., 58 N. D. 435, 441, 226 N. W. 498;Matson et ux. v. Dane County, 172 Wis. 522, 179 ... ...
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Pipan v. Ætna Ins. Co.
...the wife of the present plaintiff, and the property insured is the same as there alleged to have belonged to her. See Pipan v. Insurance Co., 55 N. D. 585, 214 N. W. 901;Id., 58 N. D. 435, 226 N. W. 498. The complaint in the present action alleges the issuance of the policy to the plaintiff......