Sampson v. Century Indemnity Co.

CURTIS, J.

This appeal is from a judgment in favor of the defendant after the sustaining of a general demurrer to plaintiff’s amended complaint. There is also an appeal from the order sustaining the demurrer. The latter appeal is dismissed as no appeal lies from such an order. The statement of facts is taken from the allegations of the amended complaint. The plaintiff is the trustee of the estate of Robert Farris, a bankrupt. In July, 1929, the Century Indemnity Company, the defendant herein, issued to the said Robert Farris its automobile insurance policy in the limited sum of $10,000, whereby the defendant agreed to pay “all sums which the assured shall be liable to pay by reason of the liability imposed upon him by law for damages because of bodily injuries . . . accidentally sustained by any person, caused by the ownership and maintenance or the use of’’ the assured’s automobile subject to the limit of liability stated therein which, as before noted, was the sum of $10,000. The policy of insurance further provided that the insurer agreed also “to pay all costs . . .

also all interest accruing after entry of judgment until the Company had paid, tendered, or deposited in Court such part of such judgment as does not exceed the limit of the company’s liability thereon.

. . . ” While said policy of insurance was in full force and effect, one Gerda Hart accidentally sustained bodily injuries caused by the ownership and maintenance and use of the assured’s automobile, and thereafter the said Gerda Hart, in the Superior Court of the County of San Diego, recovered a judgment in the sum of $20,000, besides interest and costs, against the said Robert Farris, said judgment being for and on account of the aforesaid bodily injuries. No part of said judgment has been paid. except the sum of $10,000 principal, the costs of said action, and the sum of $1874.55, interest on said judgment, which said payments were made by the defendant, the Century Indemnity Company. It is further alleged that the defendant “is indebted to the said Robert Farris in a sum equal to the interest upon the sum of $10,000 at the rate of seven per cent per annum from the 3rd day of March, 1931’’, the

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date of the judgment rendered against Robert Farris in the action instituted against him by the said Cerda Hart, until paid in full, amounting at the “date hereof to the sum of $2,737.77, no part of which has been paid”. Then follow allegations that the said Cerda Hart had filed her claim against the estate of said bankrupt for the unpaid portion of said judgment and that said claim had been allowed in the bankruptcy proceedings. To this amended complaint, stating facts substantially as herein set out, the defendant filed a demurrer, both general and special which was sustained by the trial court without leave to amend. From the judgment thereafter entered against him, the plaintiff has appealed.