Chamberlin v. City of Los Angeles

McCOMB, J.

From a judgment in favor of defendant insurance companies predicated upon the sustaining of their demurrer to plaintiff’s complaint as amended in an action to recover upon a contract of indemnity insurance, plaintiff appeals.

Facts : The Los Angeles Municipal Code provided that an applicant in order to place benches on streets in the city of Los Angeles must, as a condition precedent to the issuance of a permit, post and maintain with the city a surety bond or policy of public liability insurance conditioned as follows:

“(b) The bond or policy shall be conditioned that the permittee will indemnify and save harmless the City of Los Angeles, its officers and employees from any and all loss, costs, damages, expenses or liability which may result from or arise out of the granting of the permit, or the installation or maintenance of the bench for which the permit is issued and that the permittee will pay any and all loss or damage that may be sustained by any person as a result of, or which may be caused by or arise out of such installation or maintenance. ’ ’

Defendant California Bench Company, in compliance with the foregoing provision and in order to obtain a permit from defendant city to place benches upon the public streets, posted a bond with defendant municipality conditioned to, “Pay any and all loss or damage that may be sustained by any person as

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a result of, or which may be caused by or arise out of such installation or maintenance. ’ ’ This bond was issued by defendant American Associated Insurance Companies through its affiliate, American Automobile Insurance Association, Incorporated.

Thereafter defendant California Bench Company placed a bench on a street corner in the city of Los Angeles where persons waiting for a bus might be seated. A hole or depression developed in front of the bench. Plaintiff, a woman 70 years of age stepped into it, fell and suffered a fracture of the femur. Plaintiff instituted the present action naming the city, the bench company and the insurance companies as defendants. The insurance companies demurred on the ground that no action will lie against an indemnity insurance company on its bond until final judgment has been obtained against the assured, which demurrer was sustained.