Heavilin v. Westchester Fire Insurance Co.

MARKS, J.

Plaintiff brought this action to recover from each separate defendant its proportionate share of $500, the alleged value of a stolen automobile upon which each defendant had issued a separate policy of insurance against theft. He had judgment against the Westchester Fire Insurance Company of New York for $95.24 and $8.88 accrued interest, the Home Insurance Company for $57.14 and $5.32 accrued interest, and the Great American Insurance Company for $47.62 and $4.44 accrued interest. The sole question we need consider on this appeal is whether the Superior Court of Kern County had jurisdiction of the action. There is no class A justice’s court in that county.

While, as a general rule, jurisdiction is determined by the prayer of the complaint, we may scrutinize the allegations of the complaint where necessary to determine the court, having jurisdiction of the action.

(Trinidad Bean & Elevator Co.

v.

Superior Court,

128 Cal. App. 355 [17 Pac. (2d)

153]; Hammell v. Superior Court,

217 Cal. 5 [17 Pac. (2d) 101].)

We infer from the allegations of the complaint that plaintiff purchased the automobile in question on a conditional sales contract with title reserved in the seller, and refinanced

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the purchase with a similar contract. As the contracts were paid that matter becomes immaterial and we will treat the case as though plaintiff had been at all times the legal owner of the car.

The complaint alleges that on September 19, 1932, plaintiff was the owner of a 1928 Hupmobile sedan and was insured against theft of the car in the sum of $300 by the Westchester Fire Insurance Company of New York; that on December 15, 1932, he was insured against the theft of the car by the Home Insurance Company for the actual value of the automobile; that on December 16, 1932, he was insured against the theft of the car in the sum of $250 by the Great American Insurance Company; that each policy was for one year and the premiums were paid by plaintiff; that the three policies were in full force and effect on July 16, 1933, when the automobile was stolen, “totally wrecked” and rendered “utterly valueless”; that when stolen the automobile was of the value of $500; that on July 20, 1933, defendants, through a common agent, took possession of the ear and still retain it; that immediately after the theft plaintiff notified defendants of it and made due proof of loss; that defendants repudiated their contracts and refused payments under them; that the policy issued by the Great American Insurance Company contained a clause to the effect that if the insured had concurrent theft insurance on the automobile it should be liable only for its proportionate amount of the loss which the sum insured bears to the total amount of the insurance; that plaintiff was unable to determine and apportion the respective liabilities of the separate defendants and therefore joined all of them as defendants in the action. The complaint concludes with the following prayer: “WHEREFORE, plaintiff prays judgment in the sum of Five Hundred Dollars ($500.00), apportioned against the several defendants as their respective liabilities may appear, and for such other and further relief as may be equitable and just in the premises; and for his costs of this action. ’ ’