Wormington v. Associated Indemnity Corp.

WHITE, J., pro tem.

This is an action against an insurance carrier to recover the amount of a judgment previously obtained against an insured. Plaintiff was injured in an automobile accident as a result of the negligence of George W. Locke, Jr., and the latter was insured against liability with the defendant corporation. The plaintiff sued Locke and recovered judgment for $3,886.65 and costs, which sum he ivas unable to collect from Locke. Plaintiff then brought this action against the defendant insurance company. In its answer the company set up the defense that, while it issued a policy of insurance to Locke upon a Ford automobile, the automobile upon which the policy was issued was not the automobile which figured in the accident as the result of which plaintiff secured judgment against the assured, Locke; and the further defense that the assured failed to cooperate with the company in assisting them in the preparation of the case for trial by failing and neglecting to report to the company’s attorneys when so requested, and, in addition, had failed to attend the trial and testify. Judgment was subsequently rendered in favor of plaintiff, from which defendant insurance company prosecutes this appeal.

Two questions are presented to us: (1) Was a contract of insurance in existence, force and effect upon the automobile involved in the accident? (2) Assuming that the answer to the foregoing is in the affirmative, did the alleged failure of the assured to cooperate with the company relieve appellant of liability?

As affecting the first question, it appears without contradiction that on March 22, 1930, the appellant issued a policy of insurance upon a Ford coupe automobile, engine number A-290523-M, in favor of George W. Locke, Jr. On the early morning of Sunday, September 14, 1930, the assured, Locke, while driving a Ford automobile, but not the one originally insured, became involved in an accident with an automobile operated by the respondent herein. It appears from the evidence that some time between September 4th and September 13th the assured “traded in” the first-named Ford automobile and purchased another Ford automobile, bearing engine number 2354139, and this was the automobile involved in the accident with respondent. The accident occurred early Sun

[323]

day morning, September 14th, and the evidence without dispute shows that on the following morning, Monday, September 15th, the assured, Locke, contacted appellant, advising M. C. Hewett, special agent for appellant, that he had bought this new car, and that he had driven from Ventura to Los Angeles on the previous Saturday, and had attempted to notify appellant of the change of automobiles and to secure a transfer of insurance from the old Ford to the new one, but was unable to do so because appellant’s office was closed Saturday afternoon. The evidence discloses that in this same conversation the assured informed appellant’s agent that his automobile had been involved in an accident the day before. With full knowledge of the fact that assured had theretofore purchased a new automobile, and that such automobile had been involved in an accident, appellant company placed an endorsement upon the assured’s policy, transferring the coverage to the new automobile, predating it so that coverage attached to the new automobile as of noon, September 13, 1930, some hours prior to the happening of the accident.