14 P.2d 149 | Cal. Ct. App. | 1932
THE COURT.
On February 27, 1930, judgment was entered in the above action in favor of plaintiff and against the defendant for $2,500 and costs. The action was one for personal injuries caused by the negligent operation of an automobile by the defendant. The latter was insured against loss or damage due to such negligence by a policy of liability insurance issued by the Home Accident Insurance *292 Co. of Arkansas. Therein the insurer agreed "to defend in the name and on behalf of the assured any suit brought to enforce a claim for damages . . ." and the policy also contained the following provision: "The assured, whenever requested by the company, shall aid in securing information and evidence and the attendance of witnesses and in prosecuting appeals, but the assured shall not voluntarily assume any liability either before or after an accident, nor shall he, without the written consent of the company previously given, incur any expense or settle any claim except at his own cost, nor interfere in any negotiations for settlement or in any legal proceeding conducted by the company on account of any claim. . . ." Further, that in the event of a judgment being recovered against the assured an action might be brought on the policy by the injured person against the insurer.
The evidence shows that the insurer employed attorneys and carried on the defense without interference by defendant. Upon the entry of the judgment an appeal was taken therefrom by the insurer, acting through its attorneys, and a bond was filed for the purpose of staying execution pending the appeal. This bond was procured by the insurer from the Indemnity Insurance Company of North America, which at the insurer's request became sole surety thereon. Thereafter the insurer became insolvent and the appeal was dismissed, whereupon a remittitur issued and was filed in the superior court. The judgment passed by assignment to J.C. Hughes, who, on June 17, 1931, filed in the superior court a written application for entry of judgment against the Indemnity Company as surety upon the bond. The application was granted, resulting in a judgment under section
Following such payment the Indemnity Company, pursuant to section
[1] While the policy contained the provision that the assured, if requested by the company, should aid in the prosecution of appeals, by no reasonable construction did this provision require defendant to furnish a bond to stay the execution of a judgment pending an appeal, or to place himself in a position where he would be subject to a claim of the character made in this proceeding; and it has been held to be the duty of an insurer, in case it elects to appeal, to furnish the bond. (Pacific Coast Casualty Co. v. General Bonding CasualtyCo., 240 Fed. 36.) It has also been held that an insurance company, in exercising its right to defend an action brought against the assured, is not the latter's agent, but rather in the position of an independent contractor. (Attleboro Mfg. Co. v.Frankfort etc. Ins. Co., 240 Fed. 573; Bell v. Greenwood,
The Indemnity Company contends, however, that having paid the judgment it became substituted to the rights of the judgment creditor under said section
[2] A surety is one who at the request of another, and for the purpose of securing him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor (Civ. Code, sec. 2831); and it is the general rule that in order to recover he must show that he became such at the express or implied request of the principal; otherwise, he will be deemed a mere volunteer, and cannot thus make himself a creditor of him whose debt he pays. (Spencer, Suretyship, sec. 118; 50 Cor. Jur., Principal and Surety, sec. 404, p. 249; Mitchell v. Chambers,
The orders appealed from are affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on September 3, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 3, 1932. *296