Georgia Casualty Co. v. Boyd

• Decision Date: 29 July 1929
• Docket Number: No. 5708.,5708.
• Citation: 34 F.2d 116
• Parties: GEORGIA CASUALTY CO. v. BOYD.
• Court: U.S. Court of Appeals — Ninth Circuit

34 F.2d 116 (1929)

GEORGIA CASUALTY CO. v. BOYD.

No. 5708.

Circuit Court of Appeals, Ninth Circuit.

July 29, 1929.

Redman, Alexander & Bacon, of San Francisco, Cal., for appellant.

Harry I. Stafford and Dean Cunha, both of San Francisco, Cal. (Daniel R. Shoemaker, of San Francisco, Cal., of counsel), for appellee.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

In May, 1925, appellant issued to Dr. George O. Jarvis, in California, a physician's liability insurance policy for $5,000. It recites that it is issued "in consideration of $25 premium and the statements contained in the schedule indorsed hereon and made a part hereof, which statements the assured makes and represents to be true by the acceptance of this policy," etc. Turning to the "schedule," which is headed, "This policy is based upon the following statements which are represented by the assured to be true and correct and in consideration of which the policy is issued," we find that the assured therein stated that no claim was then pending against him for damages on account of alleged error or mistake or malpractice, and that no claim had been paid by him for damages upon any such account.

On October 27, 1927, the appellee obtained a final judgment against Jarvis in the amount of $5,000 as damages for negligence or malpractice in the treatment of her in his professional capacity, during the term of the policy. Thereafter Jarvis became insolvent, and on November 16, 1927, upon his voluntary petition, he was duly adjudicated a bankrupt. By an applicable statute of California, it is provided that no policy shall be issued, "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 * * * then 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." St. Cal. 1919, p. 776.

Proceeding under this statute, appellee on December 13, 1927, commenced the present suit. Answering the complaint, appellant among other things affirmatively alleged that the statement in the "schedule" to which we have referred was false, and that upon the discovery of its falsity it had rescinded the policy, notifying the assured of such rescission, with a tender back of the premium he had paid, all prior to the commencement of appellee's suit against him, but after the alleged acts of negligence or malpractice. Trial by jury was duly waived, and at the close of the evidence the court below gave appellee judgment as prayed, from which the insurance company prosecutes this appeal.

The evidence is without conflict, and fully supports the appellant's affirmative defense. The statement in the schedule was manifestly material, and was untrue. On August 26, 1926, appellant sent the assured a notice that on account of such falsity it rescinded the policy and with the notice was a check to cover the amount of premium paid.

Appellant's single contention is that on the undisputed facts it was entitled to a judgment of dismissal. Appellee objects that the assignment is not available to it, for the reason that it did not take the requisite steps to procure a ruling on the question in the course of the trial. But when the evidence was all in it moved for a judgment in its favor, whereupon the court ordered the cause submitted for decision, and implicit in its final decision in appellee's favor was a ruling denying this motion. True, in many cases a ruling on a mere motion for judgment would not be reviewable, for where the evidence is conflicting, or susceptible to opposing inferences touching the ultimate facts, the ruling might involve nothing more than a finding of fact. But here the evidence was such that, as a matter of law, appellant was entitled to findings of fact in harmony with its pleading, and therefore the motion...