Union Insurance Agency v. Insurance Co. of North America

197 N.W. 225 | N.D. | 1924

Nuessle, J.

In May, 1921 the defendant insurance company issued a $2,000 policy of fire insurance to the Minot Auto. Company. The Minot Auto Company also had policies of insurance with other companies. The aggregate of such policies exceeded $4,000. In September, 1921, tbe property so insured was destroyed by fire. Thereafter the auto company assigned to the plaintiff its claim against the defendant insurance company and the other companies, on account of such fire loss, to the extent- of $1,400. Such assignment is known in the record as Exhibit F. It appears that similar assignments were made to others and suits begun thereon.

The defendant company did not consent to this assignment and refused to recognize the same, denied any liability on account of the contract of insurance and refused payment to tlie plaintiff. Thereupon the plaintiff brought this action on the assignment against the defendant company alone, claiming to recover the sum of $1,400 and interest. The defendant answered setting up various defenses as against the claim of loss. The cause came on trial to a jury. The plaintiff submitted its evidence, including Exhibit E, received over objection, in support of its complaint, and rested. Defendant’s counsel then moved to strike out “Exhibit E and all testimony of the witness Stearns and Bratsberg touching the assignment by the auto company of a portion of the policy to the Union Insurance Agency on the ground and for the reason that it is disclosed on the face of Exhibit E that, it is a partial assignment of the debt or in case of the policy a chose in action and not an assignment of the total amount due and is a splitting of the cause of action, and on the further ground that there is no testimony in the record showing that the insurance company defendant consented to such partial assignment or to any assignment whatsoever.” And as a part of this motion defendant requested that the court take judicial notice, of the records of the court in the other actions pending as against the defendant and the other insurance companies named in Exhibit E.

The plaintiff thereupon asked the court to certify the questions involved to the supreme court under the provisions of chapter 2 of the Session Laws of 1919, and asked that the decision of the motion and all other matters be hold in abeyance until the decision of the Supreme Court on said questions so to he certified, and further asked and consented that the jury might be discharged from further consideration in said action. The trial judge granted the defendant’s motion to strike the assignment Exhibit E from the, record on the ground that the same was irrelevant and immaterial and that on the pleadings no cause of action could be based on tbe partial assignment and, in accordance with the plaintiff’s request, discharged the jury and consented to and did certify the questions to the Supreme Court. The record and questions held to he raised are now here on such certification.

Tt was conceded by the plaintiff on the record that, if the motion io strike out was granted, it would he decisive of its case and that if such motion was granted, the plaintiff had no other further assignment, either oral or written, that could be used to supplement or furnish any evidence in the case and that it was obliged to rest solety for the purpose of recovery on the strength of 'Exhibit F. The defendant did not join in the request to the court to certify the matter to the Supremo Court, nor did it assent to or acquiesce in such certification. Kather, the defendant is here in this court protesting such action on the part of the trial court and contending that this certification, if the same be considered and determined by this court, amounts to an indirect exercise of original jurisdiction on its part.

This court has heretofore considered the provisions of chapter 2, Laws of 1919, and passed upon the requirements for a certification thereunder. See Harrington v. Eggen, ante, 569, 197 N. W. 136; Malherek v. Fargo, 48 N. D. 1109, 189 N. W. 245; Stutsman County v. Dakota Trust Co. 45 N. D. 451, 178 N. W. 725; Guilford School Dist. v. Dakota Trust Co. 46 N. D. 307, 178 N. W. 727; and Clark v. Wildrose Special School Dist. 45 N. D. 497, 178 N. W. 730.

In the instant case the trial court ruled upon the questions raised, granted the plaintiff’s request, halted all proceedings, discharged the jury and certified the questions to this court. It is to be noted that the questions so certified arose by reason of a motion requiring a ruling on a matter of evidence, a ruling purely interlocutory. The questions might or might not determine the issue — that is, finally and the legal controversy — depending upon what further legal questions might arise and how be disposed of and what further facts be established. Can the questions raised be said to determine the issue any more than any other questions raised and disposed of by an objection to and a ruling admitting or rejecting evidence? The defendant contends otherwise, and asserts that if the law be declared adversely to it on the controverted questions, it still has other matters of defense on the merits on which it relies which are not now here and which this court may not pass upon except in the exercise of its appellate jurisdiction. It appears from the record that this position is well taken.

The act provides that in the sound discretion of the trial judge, a certification of questions to the. supreme court may be had “where any cause is at issue . . . and the issue of the same will depend principally or wholly on the construction of the law applicable thereto and such, construction or interpretation is in doubt and vital or of great moment in the cause,” and further provides that

"The supreme court may refuse to consider the same (the question certified) if it or they are frivolous or are merely interlocutory in their nature or otherwise not of sufficient importance to determine the issues in the cause at bar ”

The aim of the statute is expedition. It is intended to afford a review of a determinative question of law without invoking the more lengthy process of statutory appeal. Stutsman County v. Dakota Trust Co. 45 N. D. 451, 178 N. W. 725; Malherek v. Fargo, 48 N. D. 1109, 189 N. W. 245; Harrington v. Eggen, supra. In order to come within the provisions of the act, it is not only necessary that the determination of the cause may depend wholly or principally upon the construction of the law applicable to the question certified, but that it will depend wholly or principally ujion such construction of the law.

The cause will be remanded to the district court for further disposition according to law.

Bronson, Ch. I;, and Johnson, Birdzull, and Christianson, JJ., concur.