Royal Indemnity Co. v. Morris, 5824.
| Decision Date | 28 January 1930 |
| Docket Number | No. 5824.,5824. |
| Citation | 37 F.2d 90 |
| Parties | ROYAL INDEMNITY CO. v. MORRIS. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ford & Johnson, of San Francisco, Cal., and F. A. Cutler, of Burlingame, Cal., for appellant.
Joseph A. Brown, of San Francisco, Cal., for appellee.
Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
The appellee, having been injured in an automobile accident and recovered judgment for damages against one Gomez, the renter and driver of the car, who was charged with negligence resulting in the accident, brought this action against the appellant as the insurance carrier. The insurance policy involved contains a provision that the insolvency or bankruptcy of the assured does not operate to release the insurance company from the payment of damages, and that in case of a judgment against the insured and return of an execution thereon unsatisfied, "an action may be maintained by the injured person * * * against the company under the terms of the policy for the amount of the judgment," etc. Applicable also, the parties seem to concede, is a California statute (St. 1919, p. 776) requiring that all policies of this character contain 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." A like policy provision and this statute we have considered in Metropolitan Casualty Ins. Co. v. Colthurst (No. 5823) 36 F.(2d) 559, decision filed December, 1929.
After the issue was joined, trial by jury was waived and the case submitted to the court upon a stipulation of the facts. In general, the question presented here is whether the failure or refusal of Gomez to furnish the appellant, the insurance carrier, with a copy of the process served upon him in the original suit, and to authorize it to appear and defend in his behalf, should be held to debar the plaintiff herein from recovering on her judgment against him, and on the policy. In that respect appellant alleged that Gomez failed and refused to forward or deliver to it the summons and complaint although requested by it so to do, and failed and refused to appear or authorize or permit the entering of an appearance in his behalf by appellant and, though so requested, failed and refused to authorize or consent to the defense of the action by appellant or its attorney. And the stipulation is to the effect that these averments are true.
It is further stipulated that service of the complaint and summons in the action was made on Gomez on January 12, 1928, and on the same day counsel for the plaintiff mailed to appellant copies of the complaint and summons with the date of service indorsed thereon, all of which appellant received on January 12th. Also that on January 11th the Hertz Drivurself Stations, Inc., one of the companies named as the insured in the policy, forwarded to appellant copies of the complaint and summons. And it is still further stipulated that appellant was given timely notice of the automobile accident. In view of these facts, it is no defense that Gomez did not in person forward copies of the complaint and process. Slavens v. Standard Accident Ins. Co. (C. C. A.) 27 F.(2d) 859, and the Colthurst Case, supra.
Appellant's principal contention is predicated upon the requirement that, "In the event of a claim or suit covered by this policy the Insured shall in no manner aid or abet the claimant but shall co-operate fully with the company, the Royal Indemnity Company, in defense of such claim or suit." In connection therewith is to be considered a further provision under which the insurer agreed in the name and on behalf of the insured to defend all suits for damages upon claims falling within the scope of the policy.
The policy, unusually comprehensive in its coverage, was intended to protect numerous persons of different classes and, owing to the fact that in its...
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