5 F.2d 498 | 9th Cir. | 1925
(after stating the facts as above). Error is assigned to the order of the court below overruling the demurrer to the complaint. It is contended that from the complaint it appears that one of the conditions of the policy was that the insured should make no settlement of any claim arising thereunder without the written consent' of the company, and that the complaint shows that before liability under the policy was denied by the insurance company the defendant in error executed his note in payment of the judgment. Reference is made to the specific allegations of the complaint, “that on or about the 4th day of September, 1923,” the defendant in error executed his note in payment of the judgment, and the further allegation that by a notice bearing date September 6th, the insurance company denied its liability. From those allegations, however, it did not necessarily follow that the execution of the note by the defendant in error preceded the in-' suránce company’s denial of liability. And even if on account of the allegations so phrased the complaint was subject to demurrer, there was no prejudice to the plaintiff in error in the fact that it was overruled, for on the trial there was evidence from which the jury must have found that the note was not executed until after the defendant in error had received notice of the insurance company’s denial of liability and the withdrawal of its attorneys, and evidence that when made and delivered the note was dated back to September 4, 1923, in order that it might draw interest from the date of the judgment. Although the charge of the court, to the jury is not contained in the bill of exceptions, we are authorized in assuming that, in response to appropriate instructions on the subject the jury determined by their verdict that the execution of the note was subsequent to the insurance company’s denial of liability.
Error is assigned to the denial of the motion of the plaintiff in error for an instructed verdict in its favor. The grounds of the motion were the failure of the defendant in error to exercise good faith toward the insurance company and his failure to-co-operate with it on the trial of the action in the state court. Reference is made to-testimony of one of the attorneys who were conducting the defense in that court, who said that the defendant in error never spoke to him about the-ease during the entire trial, and never assisted him. But he did not testify that he ever called upon the defendant in error for assistance, nor did he testify to anything that the latter could have done to assist him. Nor do we think that evidence of bad faith or lack of co-operation is to be found in the fact that in the action in the state court the attorney for the plaintiff was the plaintiff’s brother, or in the fact that the railroad company was not made a party 'defendant in that action; the insurance company’s attorneys having, as they did, sole charge of the defense.
The judgment is affirmed.