163 Iowa 28 | Iowa | 1913
I. This action was originally brought by Lawrence W. Coehburn to recover benefits under a certificate or policy of accident insurance, as a member of the defendant association, the appellant. The accident ocurred September 22, 1908, and when suit was brought August 30, 1909, benefits were claimed for the period extending from September 22, 1908, to March 25, 1909. Afterward P. F. Nugent intervened, claiming to have acquired by assignment the cause of action in suit, following which on motion of the defendant the suit of Coehburn was dismissed because of a settlement made between the parties to the action, plaintiff and defendant, prior to the time of the intervention. The intervener claimed that the settlement had been made with knowledge of his rights, and was not binding upon him, and following the dismissal of the main action he filed petition in the case of Nugent v. Hawlceye Commercial Men’s Association, based upon the same claim of right as pleaded in' his petition of intervention. There was a consolidation of the two proceedings, trial to a jury, resulting in a verdict for the plaintiff, Nugent. The defendant appeals.. The facts so far as they have bearing upon the errors assigned will appear in the opinion.
Support of the position taken by appellant is found in Henry v. Cass Co. Mill Co., 42 Iowa, 33, in which this court held that a voluntary agreement between the parties to an action, by which their claims are adjusted, and the controversy settled, has the effect of a verdict, and when such agreement has been made a third party claiming an interest cannot intervene.
But that case, Avhile stating a correct rule, is not entirely controlling here. The intervener in his petition pleaded that he held under an assignment from Coehburn, of which the defendant, this appellant, had due and full notice. With this claim in the pleadings, it became apparent that whatever may have been done by way of settlement between Coehburn and the appellant, if the latter at the time had notice of an assignment of the claim to Nugent, did not have the effect of disposing of the cause of action, and, Avhile it may have been irregular to have permitted the petition of intervention to stand in the main action, in the face of the subsequent showing in the record that the petition of intervention and the Nugent petition were consolidated without objection, and that they each depended upon the same right, which was tried, the refusal to strike the intervention, if erroneous, was entirely vdthout prejudice.
That defendant, as an accident insurance association, is governed by the general rules as to rights and procedure which apply to insurance companies cannot be questioned, and it is therefore bound by the terms of the statute above quoted. The accident for which damages are claimed occurred in Webster county, which was then the residence of the assured. It resulted in disability. In the quoted section such an action may be brought in the county of the domicile of the assured at the time the loss occurred. Giving to the statute its fair interpretation, while the right of an assignee to bring suit in his own county and not the county of the residence of the assured may be the subject of doubt, it is clear that when the jurisdiction is laid in the county of the residence of the assured at the time of the loss', even in an action brought by his assignee, such is within the express terms of the statute. The appellant had not the absolute right to be sued in the county of its residence, although, had the plaintiff so elected, the venue would have been properly laid. While it is claimed that the right granted by the statute is purely personal to the assured, we are of opinion that it may be exercised by his assignee in the place where the assured had the right to sue. The commencement of the action by the assignee in Webster county placed no burden upon the defendant which it would not have had were the suit commenced
The evidence generally, and the testimony of T. F. Bradford, attorney for the appellant, in particular, shows that the negotiations for a settlement with Cochburn were conducted by Bradford. He was not only the attorney for the appellant in the pending cause, but it also- appears that he was the general attorney of the association. The knowledge or notice of facts acquired by Mr. Bradford, as attorney, when engaged properly in the business of his principal became in law the knowledge or notice of such fact to the client. Shoemake v. Smith, 80 Iowa, 655; Baldwin v. Davis, 118 Iowa, 36.
XIII. The instructions given by the trial court, while made the subject of general criticism, are not included in the assignment of error. They stated with accuracy the law as applied to the case, and submitted to the jury but the single cause of action, which was substantially pleaded in plaintiffs petition as well as in the petition of intervention. We find no error warranting a reversal.
The judgment of the trial court is Affirmed.