*1 injuries by respondent suffered amount of damages by recovered him. respondent sitting by evidence shows that was side of Bachman rear Leo on the seat of automobile Bayliss.
driven broken collar Forest Steele suffered a bone, legs, his head, on back and and was unable bruises dozing work for about three weeks. He was at the time testify of the accident and was not able to leading up In For circumstances to it. his action Bayliss judgment est was rendered in his favor sum opinion judgment $750. our was not excessive. this Judgment rendered in favor in the instant case in was' $835.61, judgment sum being the amount of his Bayliss plus Forest accrued interest. given
For the reasons authorities cited in day opinion filed the case of Bachman v. Inde pendence Indemnity Co., (Civ. 298) supra, judgment No. herein is affirmed.
Jennings, J., J., Lamberson, pro tern., concurred. petition A rehearing this cause was denied April Appeal 8, 1931, peti- the District Court of and a by respondent tion Supreme have the cause heard Court, in the District Court Appeal, Supreme May denied Court on 1931. Appellate Fourth March 11, No. 298.
[Civ. District. 1931.] BACHMAN, LEO etc., Respondent, v. INDEPENDENCE (a Corporation), Appellant. INDEMNITY COMPANY *2 Willis I. Ray Hays Appellant. Morrison and W. M. Respondent. B. Benson and W. H. Stammer for Paul Nourse Joe Crider, Jr., Amici Curiae behalf Appellant. MARKS, Acting P. This is J. action recover from an insurance carrier judgment ren- amount of a dered injured insured in guest favor of a while riding in Respondent an automobile. recovered from the appeal insurance carrier whom this prosecuted. ques
Katie Bachman was the owner of the automobile in tion and the the policy public liability insured named in indemnity her indemnify insurance written following loss injury to *3 On accidental others. 18, 1927, go June she desired to from Fresno to San Fran cisco, return, and in her automobile. She invited Bach- Leo man, respondent; Joseph Steele, nephew-in-law, V. her wife, Bayliss and his and Forest accompany this her trip. As she car, Bayliss did not drive the Forest was taken along driving. to assist Leo Bachman in Leo Bachman was Bachman, Bayliss was the minor son of Katie Forest and Upon trip her son-in-law. return from San Francisco Fresno, 19, Bayliss 1927, on June drove automobile. by Mrs. Bachman rode on the seat Respond front side. his occupied ent Steele going the back seat of the car. Bayliss highway, over the Pass Pacheco drove the off car and it steep road rolled down a The embankment. in the accident resulted death of Katie Bachman and passengers. question three injury of the other of appellant for the death Katie Bachman of of liability opinion in day this filed case number considered (Cal. Indemnity Independence 299, Bachman v. Co. entitled appellant 119. of for liability App.) Pac. injury suffered Joseph V. Steele is considered in the opinion day this filed in ease number entitled Joseph V. Independence Steele v. Co., ante, p. Indemnity 464 [297 Pac. 120]. in August 2, 1927, respondent
On an action commenced Bay- Superior County against Forest Court of Fresno damages by reason his liss to recover of suffered injuries Upon in date Forest received the accident. this copy served and com- was with a of the summons M, attorney plaint Benson, in the office of B. who was acting respondent copies then and who mailed complaint appellant San Francisco summons and at its Philadelphia, Pennsylvania. office its home in and at office copies appellant. were Both received For reasons forth, appellant responsi- will hereinafter be set disclaimed bility respondent the terms under of finally file in refused to an answer the action for or on be- refusal, Bayliss. half of Forest After this an amended upon him in complaint served Forest was complaint November, copy 1927. was No of this amended $5,000 general damages sent He asked 12,- 1928, special damages. January On de- $75 hearing fault of was entered and and evi- judgment respondent taken, dence of was rendered favor $2,575. Forest Bayliss the sum After entry judgment upon appellant demand was made payment, Respondent for its refused. then in- against appellant stituted action to recover the amount indemnity his under the terms of the Judgment was entered favor insurance. $2,850.07, being the sum judg- amount together Bayliss, ment Forest with accrued interest. appellant separate six presented The answer defenses. A demurrer was to the fifth sustained did *4 In its not amend. second defense it denied that the acci- subsequent injuries by negligence dent and was caused part Bayliss, together on the with other matters of de- fense, are so interwoven with we must those consider necessary not be it will to detail them here. The alleged joint enterprise fourth on of all of the occupants of the automobile.
469 negligence question operation time of accident of the automobile at the v. in the case of Leo Bachman determined and, Bayliss, fraud or collusion Forest in the absence of action, part of, between, parties it cannot to that or Indemnity Co., (Bryson be litigated v. International here. App. 790]; Kruger 88 Cal. Pac. [262 California Highway Exchange, 201 Pac. Indemnity Cal. [258 Kruger 604]; 461.) Supreme 31 Cor. In the case the Jur. following Court announced rule: “ general appears judgments ‘The rule are to be that con- binding parties privies, clusive and upon and their but as they conclusively all others prima are neither nor facie binding, unjust for the reason that it to bind a would person proceeding opportunity he had no defense, offering make a evidence, cross-examining witnesses, appealing or of he if were dissatisfied with the judgment. Indemnity contracts loss are sometimes said exception rule, to constitute an to this again while it they is said that do not in fact constitute exception all, at upon are based fair reasonable interpretation of generally the contract. seems It to be conceded, however, that surety wherever a has contracted parties reference to one of the pro- some suit or ’ ” ceeding in the courts he is concluded judgment. question joint
On the enterprise of a the trial court found contention of finding This amply supported by the evidence, which is conclusive this court. interesting
Four questions presented by are appellant’s answer which we must They consider. are new in Califor- jurisprudence. Appellant nia maintains there are four rea- why it obligations sons was released from its under pol- icy of indemnity First, insurance. because of the failure of notify Forest appellant of the accident transmit to it the pleadings summons and served upon him. policy, Under the terms of the Bayliss, Forest who was the driver of the ear at the time accident, became the insured he was operating permission the car with the request at Bachman, Mrs. the named insured. Second, because of the failure co-oper- of Forest ate with in defense of action him. *5 Third, alleged because of collusion between Leo Bachman Henry Bachman, litem, guardian Forest ad Bayliss, which resulted the latter. Fourth, agreement because of a fraudulent between parties unjust liability an upon to fasten same give ap
It is failed to admitted Forest pellant required written notice of the accident as policy He of insurance. not send to it copies did complaint August upon him on summons served 1927. attorney appellant by These were for transmitted respondent. Royal In case of Mor Indemnity Co. ris, (2d) 90, 92, 37 Fed. this was held to sufficient notice. complaint The amended more two months was served than appellant liability under had disclaimed its its proceed Bayliss’ of insurance and refused to de by him. although requested so do fense action is evident that the transmission of this It from the record changed its complaint appellant would amended pay upon obligation defend the or to action attitude maintains, maintained, judgment. then and still It obligation. sending The was released this it complaint been a appellant would have amended this require party to does not of a useless act which-the law upon the Appellant predicate its defense cannot .action. complaint this amended copy to it a failure transmit injured by omis and as it was not as this was excused ques fact, for do not stress counsel sion. appeal. upon tion lays great the failure Forest
Appellant stress co-operate with it in a defense of action indemnity which fur him. insurance following provi this action contains nishes basis of pertinent hereto: sions Katie
“Policy No. LA 76925 Insured Bachman May 24th 1928. Expiry “Premium date $15.00 (cid:127) (cid:127) (cid:127) (cid:127) s $" “Schedule of Statements No.-. “Statement respect damage Company’s
“11. injury shall involving bodily or disaster accident one subject ($10,000), Dollars Thousand Ten not exceed limit of Five ($5,000.) Thousand Dollars one person.
n -oOo- * * (Personal Liability Policy Injuries “Automobile Only) *6 Indemnity “Independence Co. Philadelphia “Home Office: Holland, “Charles H. President “Policy No. LA 76925.
“In consideration of premium in, specified and hereon, Statements in, contained endorsed Schedule part hereof, true, made and warranted Insured to be Independence Company (hereinafter Indemnity called ‘the Company’) hereby agrees in Insured named if, Statement during term Policy, any of this automobile in 4, by described Statement reason of its owner- ship, maintenance any or use at location within the United States of Canada, injuries America bodily and shall cause by accident, resulting fatally otherwise, whether any or person persons, or bodily injuries and for which the In- sured provided others as hereinafter liable for are and/or damages, then the Company will arising insure loss liability, subject out of such to the limits set forth State- ment 11, Insured, the named any person persons or and/or riding while legally operating any or automobiles Statements, described in the Schedule of any-person, and/or corporation legally responsible firm or operation for the thereof, provided riding, operation use or is with the permission of the named Insured; or, if the named Insured individual, permission with the of an adult member (other servant) than chauffeur or domestic of his house- hold. addition, will in
“And in the name and on behalf of the any person, corporation named Insured firm or as and/or defined, above all damages “1. Defend claims or suits for for such in- juries damages they are, be, alleged are liable. (a) Pay
“2. all incurred with costs and expenses Company’s written consent. costs, accruing “(b) Pay (c) Pay all interest taxed all judgment. upon any expense Repay
“3. providing incurred such im- surgical mediate imperative relief as is at the time of the accident.
“Providing always hereby the Insurance made and subject shall be to the Conditions hereinafter set forth and to the memoranda, any, if endorsed like hereon manner as if the respectively repeated same were incor- and porated herein, compliance and with such Conditions memoranda, them, prece- each of shall be a condition dent right recovery hereunder. ‘1Conditions Upon
“3. any the occurrence of accident covered Policy, give Insured shall notice immediate written Company thereof to Office, at its forward .to Home Company receipt process, every forthwith after thereof pleading paper relating all kind claims, proceedings. suits and insolvency bankruptcy
“7. the event of In- not, respects said Company named Insured the shall *7 sured, indem- thereby payment be relieved the of of provided herein, the dam- except nities that the amount of age by judgment against said shall first be fixed the Insured.” policy appellant
This and Forest is the contract between provi- together which, under with the. the terms of par- law, rights, obligations sions of the duties and upon obligation place ties must be determined. Its no terms co-operate appellant defense Forest in the with respect In contracts of an action. it differs from the many decisions of insurance furnish the basis for the upon and relied jurisdictions appellant cited from other failure the insured of its contention that to sustain it of an action the defense co-operate the insurer with policy. liability under its insurer from the releases duty by appellant the of of eases cited practically all the a con- co-operate the insurer was made with the insured to right recovery. This of policy and of the the dition in ease, policy in the instant being the omitted from condition holding authority for a similar no cited furnish the cases duty placed contract as the no conclude that here. We de- co-operate appellant in the with Bayliss upon Forest co-operate failure to that of the suit fense of standing itself and alone, cannot furnish a defense must, the however, instant action. It be considered in con- nection with fraud, the as, defenses of collusion and failure to co-operate might with connection other facts be considered as of evidence either collusion or fraud both.
The defenses of are inter collusion and of fraud so argu closely woven and so connected in the evidence and together. ments that we will consider them appears parties It that none to the action of appellant, nor Bachman, children Katie knew of policy existence the insurance until her death. Henry appointed Bachman was her the administrator of deposit estate. her When safe opened box was hap- appear just was discovered. It when this does pened, justify but the evidence would that conclusion it was twenty-ninth some time between the first and the days July, 1927. was discovery After taken to B. M. Benson, Esq., acting who was as the attor- ney for the He probate proceedings. administrator thereupon investigate questioned started to the accident and all survivors of wreck. He the adminis- advised trator, Bachman, Joseph they Leo Steele had V. they causes of action but carrier, the insurance Bayliss, would first have to driver sue Forest They thereupon car. proceed him to authorized litigation prepared and he complaints which were sub- sequently filed, Bayliss, served Forest on mailed appellant August, day Appellant 1927. second thereupon investigate adjuster sent an to Fresno to the acci- Hays, Ray Esq., attorney dent. W. been the local years. He a number was absent Fresno, copy complaint left of the summons in his office for his attention his return. Frederick *8 Hays’ Docker, caring legal Esq., was for Mr. W. business adjuster during prepared his absence. The a written state- accident, Bayliss re- ment of the of the but circumstances sign it, giving to that had fused his reasons Mr. Benson sign nothing. him This statement not contain told to did It a detailed account the circumstances of the accident. assertions, in the form conclusions contained which were Bayliss that himself careless opinions, did not consider negligent operation in his of the automobile nor that he anyone considered just ground that had claim against him on Except account of the accident. these legal opinions, conclusions and the circumstances of the acci- dent there necessarily set forth did not those differ from contained Bayliss other statements made in which negligence his clearly appears. concerning evidence leading Bayliss’ up sign conversation first to refusal to statement entirely not clear. testified that Mr. Docker Bayliss he correctly asked if the statement set forth accident, Bayliss replied to which it did. that facts necessarily contained in the statement do not facts refer legal opin- to nor include statements of conclusions or Further, ions. Bayliss negli- the trial court found that gent operation automobile, finding supported by great weight evidence. Hays
Mr. August returned to Fresno about middle later, and interviewed A days at his office. few being notary public, Bayliss gave sworn a state- ment of the Hays, circumstances of the accident Mr. which was taken sign down shorthand. He refused to statement, giving the same reason On as before. August 27, 1927, again he was called office of Mr. presented Hays there with answers the three com- plaints filed him. He read over the answers and them, sign telling Hays refused Mr. Benson Mr. that sign nothing. advised In an extended conversation ' Hays, Bayliss friendly with Mr. stated that he was plaintiffs they in the three thought actions and should recover for their losses and that he would like them squarely. do if he negli- so could do it He asserted that his gent operation of the automobile was the sole cause of the Upon verify accident. his final refusal answers, Mr. Hays informed disclaimed verify insurance because of refusal under its presented, answers, other his re- the answers actions, co-operate in the defense of the fusal and his co-operate plaintiffs with the apparent desire to their Hays securing judgments gave him. Mr. him a letter, probably liability; a further disclaimer which was record, appear and also called does telephone, informing him Benson Mr. over *9 August verify the Under had refused to answers. date re- 31, 1927, appellant disclaiming wrote a letter sponsibility liability policy for and under the insurance Ben- Shortly thereafter Mr. reasons hereinbefore set forth. explained to got son into communication with answers, sign any him that he had not but told not to agents merely sign any not statements prepared necessary representatives appellant, it was sign complaints for filed answers to preparing him. This in Benson conference resulted Mr. Bayliss signed letter Hays addressed to Mr. in- September mailed. 8, 1927, This letter was dated Hays part formed in Mr. as follows: your “I have 31, 1927, regard of August letter in to the brought against Joseph three suits Bachman, me Leo V. Steele, & Henry Bachman, say you and note with ref- what your denying erence to any liability. are mistaken in Tou regard my attitude in I this matter. not refused verify any negligence answer which my part, denies simple for solely reason that the accident was caused my negligence always and carelessness. I have been willing verify and still am willing, hereby and I offer to any answer which truthfully sets forth the these facts in I cases, prepare you demand that such for answers signature and verification.
“No default has been any entered in of these cases and you my unless undertake defense immediately, I shall em- ploy attorneys other and later I expect reimbursement compelled I sum am expend attorney fees. throughout
“Tour attitude the matter has you been that should tell me the facts accepting these cases instead of the facts from me.”
This letter did change the attitude of It stood its former disclaimer of and refusal represent Bayliss litigation. Judgments in the three actions on January 12, were rendered day 1928. On that Hays Benson informed Mr. Mr. judgments had Hays been thought rendered that if Mr. defenses actions he would set judg- aside the permit
ments Hays to be defenses made. re- Mr. plied gates that Mr. Benson “had closed behind him” “had bridges burned his behind him”. Under date 7, Hays Mr. wrote Mr.
June Benson follows: Bay- misunderstanding apparent
“In of Mr. view of the original verify we liss’ cases refusal the answer judg- advisability considering having all of the are *10 filing same set then ments aside and the cases dismissed and Bayliss again, pursued, over and in case this course is Mr. might verify you prepare. would then answer which request up Please once company take this with the at and early answer, same, please you and when received have advise me.” produced results,
As this demand made letter no was upon appellant pay judgments, upon refusal and do, so to the three were them. suits instituted collect Had the court found there fraud and collusion that was Bayliss plaintiffs between and the which resulted judgments there against Bayliss, that we have concluded ample is supported evidence the record to such finding. However, the there such court found that was no seriously Appellant questions fraud. these collusion or findings contrary supported and not the evidence. In testimony produced by appellant addition to the detailed, it showing we have introduced evidence that Henry regarded and bringing Bachman Steele they Bayliss joke. explained actions as a that They joke Bayliss really it for the reason that was did consider per property earning week, $17 or assets and out without himself, trying support was his wife and which he wages child; purpose his were insufficient for that pay in order his borrow from his relatives he that had they They ex- expenses. testified that did not living also Bayliss. They judgments explained pect to collect Bay- upon saying this belief founded that statement foregoing We that impecunious condition. believe liss’ presented by appellant fairly the evidence summarizes between, fraud on establish collusion it relies to plaintiffs in the actions Bayliss and the him. existence findings the court view of not collusion, must determine or we whether fraud and infer- record; in the or reasonable evidence
there evidence, supporting these drawn from to be ences findings. principally This testi- evidence found in the mony conferring Bayliss Mr. Benson. He admits telling sign several him times and not the statements representatives prepared by explains He part by saying well-known this action on that it is a adjusters companies obtaining fact indemnity company these statements often color them favor of the signature unwary and secure the of an witness to a writ- ing exactly present that does not the true He was facts. positive testimony Bayliss in his that he did not tell not to sign any complaints answers to the did know sign verify refused in- the answers until formed Hays of this fact telephone. over the Mr. He immediately got into communication with Mr.
corrected his mistaken idea about the
answers and had
sign
September 8,
and mail the
letter
He
1927.
further
testified that at no time
he
litiga-
did
advise
tion
anything
instruct him
to do
in connection therewith
representatives
except to tell the
attorneys
appel-
*11
lant the truth about all of the
of the
circumstances
accident
sign any
and not to
prepared
written
statements
them.
Of
impropriety
course the
attorneys
of
plaintiff
for the
giving any advice or instructions to the defendant
in an
immediately apparent
action is
and needs no further com-
(Anderson
ment.
Eaton,
v.
were him for to verification are in not the record. It appears from undisputed evi dence, however, that these negligence answers denied Bayliss that when refused sign to them he maintained that he guilty accident, was of the or in words, negligence other that his caused it. While this did him from signing any not excuse might truly answer which legitimate a defense, set forth sign it did excuse him from ing presented the answers to him. As was said in the Royal Indemnity Morris, case supra: Co. may
“It duty respect be added that the in insured permitting susceptible a defense in his name is not to precise general definition. He puppet is not to be a mere obligation insurer; the hands of the he is under no to name, nor
permit np in can a sham defense to be set his expected verify an which he not be- he be to answer does responsibility, true; personal lieve to be he cannot evade yield he any and hence is not bound demand principle; entail any would violation of or ethical law assist in arbitrarily unreasonably he cannot decline to legitimate any making fair and defense.” sign any As soon his was informed of duty facts prepared forth true answers which set verify appellant willingness to case, he informed his appel- conveyed pleadings. information was This Bayliss’ was default lant more than four months before appel- gave taken him. judgment entered and This legitimate ample interpose any time to defense lant urged might pending be in the actions. "While was assumed, we justified he position first appel- is equally apparent think it from the evidence that prompt extremely attempting lant was avail itself of escape liability thereby technical for an defense and injury clearly which the record indicates was caused negligence of its insured. undisputed
We have examined the evi- record and the injured quite seriously shows that Leo Bachman was dence and the other accident, of his wrists was broken one bruised, badly severely He quite sprained. was his He badly forehead were cut. was confined face and opinion hospital for We are of about two weeks. was Ho rendered his favor not excessive. asleep on rear seat at the time was automobile legitimate accident there defense and if was against Bayliss except urged in be his suit as to amount recovery, record. If appear it does not urged, there such defense to elapsed Sep- ample time in the four months which between *12 1928, prepare 8, and-January 12, which to tember setting it serve and file the same. forth and to an answer evidence, arguments appellant, Analyzing the and grounds maintaining that that we find for Bayliss between was voided because collusion actions, a fraudulent plaintiffs damage three unjust agreement them to between fasten family relationship be- appellant, (1) are as follows: The them, (2) tween is admitted. The fact that plaintiffs regarded jokes, Bayliss their actions explained upon grounds we have indicated. accepted The There explanation trial court as true. is a supporting reasonable inference from the evidence theory. (3) par- agreement That there was an between the - Bayliss. ties not to judgments against enforce The plaintiffs they expect testified that did not to collect judgments impecunious because his condition made proof. Bayliss and execution he testified did not expect pay judgments to because he could not do so. They any agreement all denied there was release Bayliss findings paying judgments. court’s agreement the existence of supported by (4) Bayliss, the evidence. The refusal of re- at quest attorney plaintiffs, sign for the written statements of the prepared of the accident circumstances by representatives appellant. It is admitted re- spondent this was Bayliss done. attorney This told to tell the true sign facts of the accident but not to state- Bayliss ments. apparently made several frank and truth- ful statements of the circumstances the accident attorney law, We know no rule of nothing in the policy, requiring sign him to there swear finding to such statements. The court’s in favor of respondent on this issue that this action on the attorney and the good was taken in faith and with- out collusive or fraudulent intent is supported inference (5) reasonable from the evidence. That co-operate refused to in the defense of the against him. actions placed contract of insurance no obligation upon him to do co-operation so and this lack of only can be considered as a tending circumstance indi- cate collusion (6) or fraud or both. That refused sign verify presented the answers to him. These presented answers defenses not in accordance with the cir- cumstances of the accident as claimed him to be the true facts, Mm from signing excused and verifying presented (7) answers Bayliss. him. That refused sign verify any answers in the actions him under plaintiffs. advice counsel for the According Bayliss’ testimony, and his statements attorneys
appellant, they undoubtedly The believed this be true. to attorney plaintiffs given that he no testified had Bayliss such advice to and not that did know answers prepared presented had been or him nor that he sign until refused to them after such refusal when he was by attorneys told of this fact one of the He thereupon Bayliss him communicated with and informed given that no such he advice had been and that would have sign verify any answers, allegations of which and appellant’s attorney Bayliss conformed the truth. wrote sign ready willing him that he was and informed and verify people col- and such answers. Two or more must one together. Collusion cannot be on lude agreement unjust Nor to fasten an alone. can fraudulent testimony liability person. be on another made one of Mr. and his collusion on their Benson clients denied part. The court found this contention of finding. support is and there evidence record (8) friendship relationship That on account of his and judg- them to recover desired plaintiffs for the qualified it Bayliss admitted him. ments them if he to recover he that wanted statement with the part might squarely”. This desire on could “do it prompted the honest belief that one a natural have been responsible for the accident. solely negligent he and fact, negligence. points strongly to his evidence reading record, conclusion should be no other explanation accepted believed this reached. The court (9) From fore- evidence it could do so. under the circumstances, appellant going facts and combination demonstrating satisfactory evidence there concludes attorney on the plaintiffs and their between collusion other, agree- and a fraudulent on one side unjust persons fasten these ment between this contention and found appellant. The court attorney had acted action and parties finding fraud. This without collusion good faith by reasonable inferences by evidence and supported the evidence. attorneys undoubtedly believed that
Appellant and its between actually existed and fraud collusion disclaimer lia- suing at the time parties bility proceed under and the refusal to ex- defense of the If fraud had actions. such collusion or they justified they isted took. would been the action Judgments per- tainted fraud collusion should *14 mitted to furnish the basis on the insurance actions policy. defense, established, prevail, This if but should like any defense, court, other if not the trial established in must fail. The trial against court found on issue, finding and the support in the evi- finds sufficient dence to become final in this court.
Appellant confidently urges that under the decisions Casualty Colthurst, 36 Metropolitan eases Ins. v.Co. (2d) 559, Royal Indemnity Morris, supra, Fed. Co. v. Cole Co., man Casualty v. New Amsterdam 247 Y. 271 N. [160 N. 367], E. Casualty Co., Rushing v. Commercial Ins. must, 251 Y. 450], judgment N. 302 E. N. be [167 reversed.
The two federal cases were the United decided States Appeals, Circuit Court of Circuit, upon Ninth causes of arising action in California. In both the court construed a statute of this state relating against to actions insurance carriers, approved 21, May (Stats. 1919, p. 776), we which will quote length. hereafter at United States always courts have conceded to state courts right and interpret construe the statutes of their state where fed- statutory constitutional provisions eral or were not involved. placed We have concluded that the construction on this by the Appeals statute Circuit' Court of does not conform to that of the courts of California. The cases are also dis- tinguishable point of fact from the instant case. In the policy required Colthurst ease the the insured to forward company process the summons and other as soon as company him. The had no it was served notice of the process action in which service days the insured until three rendered ren- dition, fact furnishes the basis of the decision. policy provision the insurance contained the Morris case manner “insured shall in aid or no abet the claim- cooperate fully ant, company, shall Boyal Indemnity Company, in defense of such claim suit”, or wholly lacking policy from the proviso in the case co-operation is relied clause
at A of this bar. violation it reached. upon by conclusion the Circuit Court easily distin- are also The cases cited from New York considering, rea- guishable for two from the case we are appeared sons; first, duty-to-cooperate because clause and, mate- policies; second, in both of the because York and California stat- rial difference between the New insurance permitting utes actions to filed injured person. carrier p. 776) is follows: (Stats. 1919, The California statute dam- against loss or No of insurance “Section 1. to, by another age injury suffered resulting from accident or liable, person person other and for which the insured is Compensa- than a of insurance under the Workmen’s any subsequent tion, Safety or Act of Insurance subject, damage prop- or loss act on the same draught erty caused or other animals horses damage person insured vehicle, and for which loss or liable, person shall be issued or delivered *15 foreign company, by any State domestic or insurance be State, do in this unless there shall authorized to business insolvency policy provision a that the contained within such bankruptcy person of the or the insured shall not release damages injury payment for from the of insurance carrier policy, during life the of such or loss occasioned sustained judgment against be stating that in shall case secured injured brought person or by in an action the the insured representatives, -in case death resulted personal his heirs or accident, may brought against be then an action the subject policy the to its terms and company, on the injured person, limitations, by personal or heirs be, judg- may to representatives, as the case recover said supplementary execution, Upon any proceeding to ment. may required to judgment policy debtor exhibit the against damage the insuring loss or by carried have been obtained.” shall judgment appear in we have italicized portion which The does. (N. 1917, chap. 524), of Y. Laws statute New York the substantially Supreme the same. .The the two are otherwise important another difference in the calls attention Court Malmgren case of two states the v. statutory law Co., 201 Pac. Southwestern Automobile Ins. Cal. [255 512, 513]. jurisdictions recognize right
In the of which do not the injured person pol- an bring an insurance action on the icy judgment collect the amount aof rendered the damages hands, insured for policy at his the suffered regarded indemnity private is and treated aas of contract between the person insurer and insured in which no other may jurisdictions become interested. recognizing the right such a of action regarded the is as a contract the between insurer and the insured their benefit and for the unknown person benefit third who becomes injured being by known and identified the insured. language injured person authorizing of our statute carrier, to file suit recovery the insurance a insured, would indicate legislature intended adopt the latter rule in California. strange It part would seem a proceeding and useless on the legislature give injured right sue if recovery the insurer a in such an action could be defeated by the company insurance and the insured without knowledge or part consent of or act on in- jured person. Supreme That Court took this is view' by language Malmgren indicated used in the case of Co., supra, Southwestern Automobile Ins. as follows: appellant’s “It contention that no contractual relation alleged injured shown exist party between the provisions statute, as above are, quoted, proposition law, a a of every indemnity corporation issued company .engaged transacting indemnity the kind of insurance business law was authorized state to It transact. contractual relation created statute *16 every person which inured to the of benefit who injured negligently might by completely be the assured as injured if person specifically as such been named in policy. the . . . by appellant
“It is contended its could not provisions under the accrue of the until an execution upon assured, issued the the obtained or judgment debtor, by was returned unsatisfied reason of the insolvency bankruptcy or of insured. The statute said of
484 issue, does not on this state, which the final word is prerequisite unsatisfied a return
make the execution policy. upon the an action commencement provision and York has such the State of New statute of policy the its appellant incorporated to be had caused substan language York verbatim. of the New statute circumvented, de enlarged, cannot be tive law of state may insurer which the by any provision or modified feated or in derogation place in contract elected its upon principles therewith. The statute founded conflict is be policy, would public and an anomalous situation protection rights parties, for whose if of third created hindered, delayed or defeated adopted, the law was could be a tri private agreements parties of two it sound, then If contention party appellant’s contract. be could, equal justification, require question adjudicated bankruptcy competent assured’s to be recognize his insol obliged tribunal before it would he impose precedent vency bankruptcy, or or other conditions injured person’s right derogation of ex action provisions merit press mandate. We see no law’s Jersey Fidelity New & contention. Schoenfeld Co., App. Supp. Plate Y. Glass Ins. Div. N. [197 606], upon merely authority case, instant relied declaratory statute, provides of the New that a York injured person of action not cause does accrue to until judgment against an execution issued the assured has been insolvency returned reason or unsatisfied language equivalent bankruptcy. language No such state, is found in the thereto statute of this and neither given authority interpolate nor this court provision of the New York law into a California stat provides The clause in the that an ute. statute ‘ac may brought company, tion on the injured subject limitations, by to its terms and ’ purpose upon person, was intended to defeat theory brought policy’ the in that an action ‘on the binds jured person repudiation to a of the benefits of waiver expressly adopted protection, statute for his it clearly concerning has reference to those matters which legally insurer and assured contract.” could
485 following support we eases the conclusions placed concerning to he on the construction reached 82 Co., Ins. Marple this statute: v. American Automobile App. 260], Pigg Cal. 137 Pac. International Indem v. [255 486], nity Co., Bryson 86 v. Inter App. Cal. 671 Pac. [261 790], Co., 100 Indemnity App. national 88 Pac. Cal. [262 Co., L. Ins. Langley v. Zurich Gen. Acc. & 97 Cal. App. 434 Pac. [275 963]. opinion of happening are the
We
of the
that after
provisions
pol
coverage
an accident
the
a
coming within
icy
insurance,
considering,
neither
the
such as we are
can, by
voluntary
act,
insurer nor the insured
defeat
right
statutory
given
injured person
bring
the
policy
judgment
on the
action
recovered
the
act or
insured without some
omission on
liability.
insured which will relieve
Of
the insurer
course, collusion or fraud between the insured
the in
jured
the damage
insurer,
proven
when
in a
action,
proper
grounds
would furnish'
release
adopt any
insurer.
permit
To
other rule
the insurer
would
and insured
policy
revoke or cancel
or release the
liability
insurer’s
at will after the accident and thus de
purpose
injured
statute,
feat
giving
the one
cause
action
judgment.
insurer to enforce his
attempted
This was
Finkelberg
v.
case of
Continen
Casualty Co.,
tal
486 also, (See, Met- on November 1920. injury
accident and Albritton, Ky. ropolitan Casualty Ins. Co. [282 187].) W. S.
Judgment affirmed. *18 Lamberson, J., tem.,
Jennings, J., pro concurred. rehearing was denied petition A for a of this cause April 8, 1931, and the Appeal on the Court of District following opinion rendered thereon: then appeared
MARKS, Acting P. J. Amici curiae rehearing and petition a support action in the of might opinion be construed urge of court that the policy a general effect where laying down a rule to the that give the indemnity provides insurance that the insured of it an and also send immediate notice of accident insurer him, complaint copies the of summons and served dispensed may be with and immediate notice the accident of sending the and com- insurer of summons plaint a notice in would be sufficient served the insured of cases, contrary rule down in the case all laid App. Pac. Co., etc. 9 Cal. 473 Aronson v. Ins. [99 Frankfort opinion to estab- attempt No such was made in this 537]. general appellate opinion lish An of an rule. light facts should be court read construed of before the ease it. case was entitled Aronson holds that the insurer reasonable immediately
notice of the accident or within a What time within time its occurrence. a reasonable may performed depends upon facts of act billed, was In the instant case named insured case. driver, Bayliss, Forest became insured un- and her who injured policy, in the der was accident. the terms living except agents, person, and its knew the insurer No opening of of the existence of until after deposit box some time after her Katie Bachman’s safe shortly there- The action filed death. intervening discovery after, between the of the exact time appearing and the institution the suit given the immediately insurer Notice was the record. sending copy the sum- filing the suit it the
487 investigation complaint, it commenced mons and failure to raising question of without accident fails to dis- The record notice. give any or additional prior liability was based appellant’s disclaimer of close that give any other notice failure to part on the or in whole summons than that contained the accident complaint. concluded that circumstances we have
"Underthese
time and
given
within
reasonable
notice
the accident was
fur
right
any other or
to receive
appellant waived the
(J.
& Co. v. New
given it.
Frank
ther notice than the one
;
Pac.
Casualty Co.,
293
175 Cal.
927]
Amsterdam
[165
Co.,
Chicago
Corp.
etc. Coke
Employers’ Liability Assur.
v.
;
Maryland
v.
962
C. A.
Rosenbloom
Fed.
C.
278]
[73
Supp. 1064];
Co., 153
Casualty
App. Div.
N. Y.
[137
Corp.,
509].)
DORA Appellant, FIRST NATIONAL AND TRUST BANK SAVINGS OF SAN DIEGO (a Corporation), Executor, al., etc., Respondents. et