23 P.2d 293 | Cal. | 1933
This is an appeal by the plaintiff from judgments in favor of the defendant, William Furman, and the interveners in an action to rescind a policy of automobile indemnity insurance.
The policy was issued by the plaintiff to the defendant Furman in February, 1930. Under the contract the plaintiff *361 agreed to indemnify the defendant against liability for bodily injuries resulting from the defendant's operation of a certain De Soto automobile. In July, 1930, the defendant, while driving the automobile in San Francisco, collided with a street-car. As a result of the collision two passengers in his automobile, Sadie Narins and Gertie Miller, suffered bodily injuries. They filed suits against Furman and on November 29, 1930, recovered judgments in the sums of $5,000 and $2,842.50, respectively. Those judgments have become final. On December 22, 1930, the present action was commenced by the insurance company against its assured, Furman, to rescind and cancel the contract of insurance by reason of the alleged breach by the defendant of a clause in the policy providing that the assured, when requested by the company, shall render all co-operation and assistance in his power in respect to any claim made or suit brought on account of bodily injuries resulting to persons by reason of the operation of said automobile.
On February 7, 1931, by leave of court, Sadie Narins and Gertie Miller filed complaints in intervention based on the judgments recovered by them and for affirmative relief against the plaintiff for the amounts thereof, with interest. Judgment was entered against the plaintiff Belt Casualty Company, on its complaint for rescission. Judgments were also rendered in favor of the interveners and against the company for the amounts of the judgments recovered by the former in their actions against the defendant Furman.
On its appeal from those judgments the Belt Casualty Company makes two major contentions.
[1] The plaintiff does not contend that the interveners have not sufficient interest in the action or in the success of the defendant therein to give them the right to intervene. But, if we understand it correctly, its claim is that the interveners may not be permitted to join in an action in equity for rescission on the claims asserted by them inasmuch as their complaints set up distinct causes of action which sound in contract and which seek affirmative relief that could be recovered in actions at law; that thereby the scope of the equitable action is enlarged contrary to the meaning and intent of section 387 of the Code of Civil Procedure. If such a general statement be declared as a correct proposition of law, the result would appear to be a *362
denial of the benefit of said section to those directly interested in the subject matter of the action, but who, though they be permitted to intervene in the action by virtue of their direct interest, nevertheless would be compelled to file separate suits to recover the affirmative relief to which they immediately would become entitled in the event the contentions with which they are aligned in the main action are finally sustained. The interveners here have an interest which is adverse or hostile to both parties in the sense that each intervener has a cause of action against the defendant Furman, as to whom she has already established herself as a creditor, and a cause of action growing out of the same transaction against the insurance company on its contract of insurance, depending on the outcome of the present action. The fact that the established pecuniary interests of the interveners against both parties to the action are so directly affected by the result, is the basis upon which the interveners were permitted to join in the action. The granting of affirmative relief to the interveners is but incidental to the main purpose of the section of the Code of Civil Procedure, which is to obviate delay and multiplicity of actions by creating an opportunity to those directly interested in the subject matter to join in an action already instituted. It has been stated that an intervener may be accorded affirmative relief which he could properly seek by way of cross-complaint were he one of the original parties to the action. (Boskowitz v. Thompson,
[2] The plaintiff's second contention has no merit in view of the state of the pleadings, stipulations on the trial, and the findings of the trial court. The contention is that the interveners are not entitled to base their causes of action on Statutes of 1919, page 776, providing in effect for an action directly against the insurance company without the necessity of first showing that an execution against the insured was returned unsatisfied (Malmgren v. South-western A. Ins. Co.,
The judgment is affirmed.
Seawell, J., Waste, C.J., Langdon, J., Thompson, J., Curtis, J., and Preston, J., concurred.