Weeg v. Iowa Mut. Ins. Co.
| Decision Date | 28 April 1966 |
| Docket Number | No. 10284,10284 |
| Citation | 141 N.W.2d 913,82 S.D. 104 |
| Parties | Olaf WEEG and Donald Weeg, d/b/a Weeg Trailer Court, Plaintiffs and Respondents, v. IOWA MUTUAL INSURANCE COMPANY, of DeWitt, Iowa, a corporation, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Gene E. Pruitt and Acie W. Matthews, Sioux Falls, for defendant and appellant.
Danforth, Danforth & Johnson, T. R. Johnson, Sioux Falls, for plaintiffs and respondents.
Plaintiffs, operators of a trailer court, instituted a declaratory judgment proceeding to determine whether they were insured under a liability policy against an accident occurring on February 27, 1964 and causing the death of the child, Michael Gaul. The defendant is the Iowa Mutual Insurance Company which had issued a policy agreeing to pay on behalf of the insured plaintiffs all sums which the insured might become obligated to pay as damages on account of personal injury or death caused by accident and arising out of the hazards therein defined. The insurer defended on the grounds that there was no liability imposed by law upon the insured for the death of the infant; that the liability was assumed by them under contract; and that the policy excludes from coverage a liability so assumed. Defendant insurer has appealed from the judgment in favor of plaintiffs.
The Greenlee Packing Company was the owner and operator of a packing plant on land adjoining that on which Olaf Weeg and his son Donald operated the trailer court. On the premises owned by the packing company were certain 'lagoons' which were used by the company for the disposal of refuse from their slaughtering operations. Some time prior to the policy period commencing March 15, 1963, plaintiffs entered into a written agreement with the Greenlee Packing Company whereby they were granted the right to dispose of sewage from their premises into the lagoons. By paragraph 4 of this contract (Exhibit 2) the plaintiffs obligated themselves as follows: 'Second parties agree to immediately erect and install a fence along the boundary line separating the premises of the first party and the premises of the second parties, which said fence shall be of sufficient strength and size so as to keep all persons away from and out of the premises owned and operated by first party and on which the lagoons aforereferred to are located.'
The fence in question was partially removed by Fred N. Wilcox, an employee of the plaintiffs and also named as a defendant in the wrongful death action. Plaintiff Donald Weeg testified as follows:
In a wrongful death action brought by Alvin Gaul, father of the deceased child, against the Greenlee Packing Company, Olaf Weeg and Fred N. Wilcox, it was claimed that defendants recognizing the danger of the lagoons or filtering pool to the many children in the area agreed to construct and maintain the fence so that no young child could get near the filtering pool; that defendants because of negligence allowed the fence to remain down and did not take any steps to prevent young children from wandering into the vicinity where the dangerous filtering pool was located; and the child wandered into the immediate vicinity of the pool and because of the negligence of the defendants in failing to keep the pool fenced got into the pool and drowned. The Greenlee Packing Company served a cross claim on Olaf Weeg and Fred N. Wilcox alleging a breach of the contract defining the rights of the plaintiffs in the proceedings at bar to use a portion of the filtering pool and demanding a determination of the relative degree of fault of the packing company, if any, and the other defendants and of rights of contribution. The testimony offered in the instant proceeding consisted of that of Donald Weeg. The court otherwise based its findings upon the pleadings and exhibits of record. The pertinent parts of the court's findings are as follows:
'That said defendant insurer employed counsel herein mentioned and defended such (wrongful death) action in the trial court, yet orally denying liability.
'That the defendant insurer herein, through its counsel and on behalf of Olaf Weeg and said Fred N. Wilcox, served and filed an Answer to plaintiff's Amended Complaint, a true photostatic copy of which is marked Exhibit '6', and as annexed to the plaintiffs' Complaint was offered and received in evidence, and by this special reference is made a part hereof, and also served and filed an Amended Reply to the pleading of the defendant Greenlee Packing Company, a true photostatic copy of which is marked Exhibit '7', and as annexed to the plaintiffs' Complaint was offered and received in evidence, and by this special reference is made a part hereof.
'That following the trial of said action, the jury returned a verdict, and as annexed to the plaintiffs' Complaint was offered and received in evidence, and by this special reference is made a part hereof. That the damages as so awarded were allocated as follows:
Greenlee Packing Company ... 60% . $9,000.00
Olaf Weeg .................. 15% .. 2,250.00
Fred N. Wilcox ............. 25% .. 3,750.00
'That evidence introduced in the said 'wrongful death' action and in this action shows that the fence in question was partially removed for a period over a month preceding February 27, 1964, and that during such period the said Greenlee Packing Company, through its officers and legal...
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Sacred Heart Health Servs. v. MMIC Ins., Inc.
...(quoting 16A J.A. Appleman & J. Appleman, Insurance Law and Practice § 8878.15, at 422024 (1981)); Weeg v. Iowa Mutual Ins. Co. , 82 S.D. 104, 141 N.W.2d 913, 916 (1966) (stating that a contract "may establish a relationship demanding the exercise of proper care and acts and omissions in pe......
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Sacred Heart Health Servs. v. MMIC Ins., 4:20-CV-4149-LLP
... ... defeat recovery against it. Milbank Mut. Ins. Co. v ... Wentz, 352 F.2d 592, 600 (8th Cir. 1965) (applying North ... Dakota ... Appleman, Insurance Law and Practice § 8878.15, ... at 422024 (1981)); Weeg v. Iowa Mutual Ins. Co., 141 ... N.W.2d 913, 916 (S.D. 1966) (stating that a contract ... ...
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Sacred Heart Health Servs. v. MMIC Ins.
... ... defeat recovery against it. Milbank Mut. Ins. Co. v ... Wentz, 352 F.2d 592, 600 (8th Cir. 1965) (applying North ... Dakota ... Appleman, Insurance Law and Practice § 8878.15, ... at 422024 (1981)); Weeg v. Iowa Mutual Ins. Co., 141 ... N.W.2d 913, 916 (S.D. 1966) (stating that a contract ... ...