Venturi v. Zurich General Accident & Liability Co.

NOURSE, P. J.

The plaintiff appeals from a judgment for defendant following an order sustaining a motion that no evidence be received upon the ground that the complaint

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failed to state a cause of action. Such a motion is in the nature of a general demurrer to the complaint and, for that reason, we disregard all the extraneous matter 'inserted in the briefs of both parties.

The action is one for damages for a breach of a contract of liability insurance. The plaintiff was the owner of an automobile upon which he placed the ordinary liability insurance under which the defendant contracted “To Indemnify the Assured against loss from the liability imposed by law upon the Assured for damages.” The plaintiff was engaged in the business of a butcher from which he had an income of about $300 a month. Four judgments were obtained against him for damages resulting from a collision with the automobile covered by defendant’s policy, all of which were within the life of and subject to the terms of the policy. The insurer had defended these actions in accordance with the terms of the policy, but, when judgments were entered against the insured, the company refused to pay them, to appeal, or to furnish

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bonds, and the judgment creditors levied execution upon plaintiff’s business forcing him into bankruptcy. For the loss of his property through forced sale and for the loss of his business and the injury to his credit, the plaintiff claims damages resulting directly from defendant’s breach of its contract.

The cause of action rests on section 3300 of the Civil Code which declares that the measure of damages for the breach of an obligation arising from a contract is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby. Plaintiff’s cause of action is not controlled by section 3302 of the code, as that section applies to contracts to pay money only to parties to the contract. Here the insurer contracted not only to reimburse the plaintiff for money actually paid out by the latter, but to protect and hold him harmless against loss arising out of his legal liability as owner of the automobile. This includes so many factors aside from the direct payment of money that a breach cannot be compensated by the payment of the amount due with interest.