9 P.2d 245 | Cal. Ct. App. | 1932
The facts leading up to this case are briefly that on the eighth day of May, 1927, Gilbert Angrimson owned a Buick automobile. This automobile was being driven by one Wilson Parker, who was then a boy of the age of fifteen years, four months and twenty-nine days. While he was driving the car an accident occurred in which the plaintiff and respondent herein, Helen Sears, sustained injuries. The respondent then sued Gilbert Angrimson, his wife, Gilbert Kent Angrimson, the son of Gilbert Angrimson, and his wife, and Wilson Parker, for damages for these injuries. At the time of the happening of the accident Gilbert Angrimson was insured in the Illinois Indemnity Company, the appellant herein, under a policy of indemnity insurance. In the first action the Illinois Indemnity Company, appellant herein, employed counsel and defended the action on behalf of all the Angrimsons. Wilson Parker was represented by other counsel. Before defending the suit the appellant herein entered into a nonwaiver agreement with Gilbert Angrimson and his wife wherein it was agreed that by defending the suit it did not waive any of the terms or conditions of the policy or admit any liability under it. It was quite elaborate but the purpose of it was to preserve whatever defense the appellant might *213 have to a suit against it in case plaintiff recovered judgment in the then pending action. The first action was tried by a jury and resulted in a judgment in favor of respondent against Gilbert Angrimson and Gilbert Kent Angrimson, his son, but no judgment was rendered against Wilson Parker. The appellant herein refused to pay the judgment on the ground that inasmuch as the car was being driven at the time by a person under sixteen years of age it was not liable under its policy. The respondent then, in pursuance of the Statutes of 1919, brought an action against appellant on the judgment heretofore mentioned, which action resulted in a judgment against appellant in the sum of $5,000, the amount of the policy. This appeal is prosecuted from the judgment so rendered.
The appeal presents two questions: First, whether appellant was liable under its policy in view of the fact that the automobile at the time of the accident was being driven by a person under sixteen years of age; second, whether appellant waived this defense by employing counsel and defending the Angrimsons in the first suit.
Taking up the first proposition we find this policy contains the following clause with reference to this matter: "Exclusions: 2. This company shall not be liable for: (a) . . . (d) while driven or manipulated by any person under the influence of intoxicating liquor or under the age fixed by law, or under the age of sixteen years in any event; . . ."
The trial court found in this action (finding 10) that at the time respondent was injured the Buick automobile was being driven by Wilson Parker, a minor, of the age of fifteen years, four months and twenty-nine days. The court also in the same finding found that "Gilbert Kent Angrimson, one of the defendants in said case, was present in said Buick automobile at the time the said accident occurred and the said automobile was at said time in the control of, under the management of and being operated by the said Gilbert Kent Angrimson". From the foregoing finding it will be seen — and it is admitted — that the car was being driven by a minor under sixteen years of age at the time of the accident, and comes squarely within the excepted class in the policy. *214
Turning now to the decisions for some light on the subject, we find that able and industrious counsel in the case have been unable to find the problem exactly solved by any decision in this state, and our own efforts have met with no more success. However, we do find in California, cases similar in principle. InMaryland Casualty Co. v. Industrial Acc. Com.,
In Coolidge v. Standard Acc. Ins. Co.,
"There is, however, no evidence in the present case that the trailer did actually cause the accident or that it materially contributed to the mishap. The answer did allege that the trailer was attached to the automobile at the time of the accident, and the claim was made that this fact exempted the company from liability. It is true the answer failed to allege that the attached trailer actually caused the accident or that it contributed to the affair. It was not necessary to make these allegations. The defendant's exemption from liability does not depend upon the attached trailer becoming the cause of the accident or even contributing to the casualty. The very fact that the trailer was being towed at the time of the accident relieved the defendant from liability according to the specific terms of the insurance policy. The company was entitled to protect itself against this added hazard. The unambiguous terms of the policy did exempt the company from liability while the automobile was towing a trailer."
In other jurisdictions we find some cases cited by appellant touching the principle under consideration as follows: InMorrison v. Royal Indemnity Co.,
In Wagoner v. Fidelity Casualty Co.,
The case of Oxford v. Fidelity Casualty Co.,
Fidelity Casualty Co. v. Palmer,
"A further argument is made by counsel for the hotel company that as the accident and resulting injury suffered by the passenger who recovered damages from the hotel company was due to a structural defect in the elevator and not to any fault or negligence on the part of the operator, the insurance company should not be allowed to escape liability under the contract. But if we should attempt to adopt this construction we would be at once confronted by the words of the contract exempting the insurance company from liability for `injuries to any person in or about the elevator while operated by or in charge of any person under the age fixed by law for elevator attendants'. So that giving to these exempting words their ordinary meaning and such meaning as they would have in common, everyday usage, it makes no difference what cause brought about the accident or injury, or how it happened. The exemption clause is sweeping in its terms, and the only fact necessary for the insurance company to establish to make the exemption from liability effective is to show that the elevator at the time the injury complained of happened was operated by or in charge of a person under the age fixed by law for elevator attendants. The exemption of the company from liability does not depend on the fact that the injury was caused or brought about by some act of omission or commission on the part of the elevator attendant, but on the fact that a prohibited elevator attendant was operating or in charge of the elevator. When the elevator is being operated by a prohibited attendant it is wholly immaterial what caused or produced or brought about the accident or injury or death to the passenger."
Kilby Car etc. Co. v. Georgia Casualty Co.,
"The foregoing is in line with the recognized rule that policies of insurance must be construed more strongly against the insurer; still the words of the policy must be given the meaning which they ordinarily bear, and, where it is manifest, as it is in the instant contract, that the intention of the insurer and the insured was that liability should attach only in given circumstances, the law will uphold the contract according to its true intent and import. It is a common expression of insurance law that the policy is the measure of the rights of everybody under it. (Northwestern Ins. Co. v. McCue,
[1] From the above authorities, which appear logical and sound, it would seem that the age of the driver of the car would be a good defense as between Angrimson and the insurance carrier. The Supreme Court in Hynding v. Home Acc. Ins. Co., reported in
"No policy of insurance against loss or damage resulting from accident to, or injury suffered by another person and for which the person insured is liable . . . or against loss or damage to property caused by . . . any vehicle, and for which loss or damage the person insured is liable, shall be issued or delivered to any person in this state . . . unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss occasioned during the life of such policy and stating that in case judgment shall be secured against the insured in an action brought by the injured person or his heirs or personal representatives, in case death resulted from the accident, then an action may be brought against the company on the policy and subject to its terms and limitations, by such injured person, his heirs or personal representatives, as the case may be, to recover on said judgment."
The insurance carrier set up the defense that the policy contained what is commonly called a co-operating clause, whereby the insured agreed to assist the insurance company in the defense of any suit that might thereafter be brought on the policy and that the insured involved in the accident had refused to co-operate in the defense and the Supreme Court held that this was a good defense and in the course of the opinion it is said:
"We see no escape from the conclusion that the violation of the cooperation clause by the assured was a valid defense against the injured party's action. We say this with the knowledge that in some cases it may work a hardship on such party, who is ordinarily in no position to force the assured to cooperate. Further, there is the possibility of collusion between the assured and the insurance company, to defeat the rights of the injured party. This possibility is balanced, of course, by an equal possibility of collusion between the assured and the injured party to defeat the rights of the insurance company. (Coleman v. New Amsterdam Casualty Co.,
As to the last paragraph above quoted, we have considered what application, if any, it might have in the instant case, but in view of the matter under discussion in the case and the fact that the cases cited in support thereof all had to do with requirements after the accident occurred, and having in mind the familiar rule that expressions used in judicial opinions are always to be construed and limited by reference to the matters under consideration (City of Pasadena v. Stimson,
In Boole v. Union Marine Ins. Co.,
Again, in Bassi v. Springfield Fire Ins. Co.,
From the foregoing we decide that if the insured had paid the judgment and brought an action to compel the insurance *222 carrier to indemnify it, this breach of condition would have been a good defense. The next inquiry is, does the injured person stand in a different position and therefore may he maintain the suit successfully, although the insured could not have done so? There is nothing in the statute of 1919 above quoted enlarging the liability of insurance companies or purporting to give injured persons any additional rights except it does permit the injured person, after judgment against the negligent insured, to bring suit to force collection, and excludes the insolvency or bankruptcy of the insured as a defense.
In Bryson v. International Indemnity Co.,
"Since the policy provides for an action on such a judgment by the injured person against the company, under the circumstances stated, the evident intent is that such person shall have the rights which the insolvent insured would have had if he had paid the judgment."
And in the case of Royal Indemnity Co. v. Morris, 37 Fed. (2d) 90, which was a case decided by the Circuit Court of Appeals for the Ninth District, which includes California, and which was a case that arose under a policy of insurance issued in California and was decided under California law, the question involved was whether the refusal of the insured to allow the insurer to defend the suit brought against him by an injured party was a defense to the insurance company when the injured party, after recovering a judgment against the insured, brought suit against the insurance company. At page 92 the court said:
"Upon the assumption that Gomez, as we hold, was an `insured', it must be conceded, under the facts stipulated, that he violated a material condition of the policy in declining to permit any defense to be made to the action brought against him by the appellee; and, as we understand, it is not controverted that as a result of the default he forfeited his right to claim indemnity under the policy. That being true, the question remains whether the appellee is in any better position. This question we expressly reserved in the Colthurst case, supra, but it now becomes necessary to decide it. Upon consideration we feel constrained to answer it in *223
the negative. Such is the weight of authority as appears from the citations in the Colthurst case. And see, also, Coleman v. NewAmsterdam Casualty Co.,
Metropolitan v. Colthurst, 36 Fed. (2d) 559, is another case decided by the Circuit Court of Appeals for the Ninth District and arose in Solano County, California. In that case the plaintiff sued in Solano County for personal injuries. The insured turned over the papers to the insurance company. Shortly thereafter the attorney for the plaintiff notified the insurance company that he was dismissing the Solano County suit but starting a new one in Napa County. The insured was served with the papers in the Napa County case but never turned these over to the insurance company. In the Napa County case the insured allowed his default to be taken with the result that a judgment therein became final. Plaintiff then sued the insurance company under the precise statute involved in the case at bar and also alleged that the insured was at all times insolvent. The Circuit Court of Appeals for the Ninth District (that is the one including California) held that the insurance company was not liable to the plaintiff because of the failure of the insured to comply with the terms of the policy and tender to *224 the insurance company the papers in the Napa County case. The decision, however, was partly based upon the proposition that, knowing of the interest of the insurance company in the case, it became plaintiff's duty to have furnished the company with the complaint and summons in the Napa County case. On rehearing, however, the court reversed itself on this latter proposition, thereby exempting the insurance company from liability and placing its decision squarely on the ground that the insured had not lived up to the provisions of the policy.
The respondent cites Finkelberg v. Continental CasualtyCo.,
We having reached the conclusion in this case that the provision in the policy which was violated by the insured was one which would constitute a good defense in any suit which the insured might have brought to compel the insurance carrier to indemnify him, we also decide that the injured person has the same right against the insurance carrier as the insured would have, and that a defense good against the insured is good against the injured claimant. In other words, to put it in plain language, if the so-called insured is not in fact insured by the policy as in this case, at the very time the accident occurred the injured person cannot recover against the insurance carrier.
[2] Respondent also seeks to uphold this judgment on the theory that because the insurance company defended the first cause of action, therefore it assumed all liability for any judgment which might be recovered therein and is now liable to the plaintiff, regardless of any defense it might have under the terms of the policy. This contention cannot be upheld. There are some authorities holding that a defense of a suit against an insured by an insurance company is *225 deemed a waiver of certain rights by the insurance company, where the company so defends without any reservation of rights. There are cases to the contrary, but it is not necessary for us to attempt to distinguish the cases or decide whether this case falls in one class or the other for it was stipulated in this case, and so found by the court, that before the beginning of the former trial, the insured and the appellant entered into a written nonwaiver agreement heretofore mentioned in this opinion. The authorities seem to be almost unanimous that an indemnity company under such circumstances waives none of its rights by reason of having defended the original suit.
In Bryson v. International Indemnity Co., supra, at page 103, in discussing the statute under which the action was brought (Stats. 1919, p. 776), it is said: "The statute cited requires a provision in such a policy that, in the event of the insolvency of the insured and the recovery of judgment for damages against him by an injured person, `an action may be brought against the company, on the policy and subject to its terms and limitations, by such injured person, . . . to recover on said judgment'. Had the insured paid the amount of the judgment it would have been conclusive in his favor against the company on every issue properly tried in the action against him, he having notified the company of the action and requested it to defend the same. (Civ. Code, sec.
In Sargent Mfg. Co. v. Travelers Ins. Co., a Michigan case reported in
And in Coolidge v. Standard Acc. Ins. Co., supra, on the point of waiver, it is said: "Finally it is asserted that the insurance company waived the failure of the assured to notify it of the occurrence of the accident within a reasonable time, and waived the exemption from liability on account of the presence of the trailer which was attached to the automobile at the time of the accident, by its effort to procure an adjustment of the claim for damages, and by its assistance in the defense of the original action for damages. This contention that a waiver resulted from the conduct of the insurance company as above related is without merit. A waiver is a voluntary relinquishment of a known right. (First Nat. Bank of Los Angeles v. Maxwell,
In view of the conduct of the appellant in this case in obtaining the waiver agreement, surely under the authorities cited it cannot be held that there was any waiver in the case. The cases cited by respondent on this branch of the case have been considered by us and have been found not to be in point. In fact the case of Coolidge v. Standard Acc. Ins. Co., supra, would seem to be conclusive of the matter.
It is our conclusion that on the findings made judgment should have been entered for the defendant. If we are right in this conclusion it follows from the undisputed facts in this case and the law applicable thereto that respondent cannot recover in this action.
It is therefore ordered that the judgment be reversed and the court is directed to enter a judgment for the appellant.
Barnard, P.J., and Marks, J., concurred. *228