Smedberg v. Bevilockway

STURTEVANT, J.

The defendant Arthur H. Bevilockway and Margaret Bevilockwa3r are husband and wife and were at the times hereinafter mentioned. For some time prior to April 26, 1932, Margaret Bevilockway was the owner of a Buick automobile. She carried indemnity insurance issued by the Independence Indemnity Company. By the terms of the policy that company agreed to pay not to exceed $20,000 for injury to one person and not exceeding $40,000 for injury to two persons. While driving her automobile on the 26th day of April, 1932, Mrs. Bevilockway collided with a motorcycle on which H. A. Brooks was riding and he suffered certain personal injuries. On the 6th day of July, 1932, he commenced an action in the superior court to recover damages and thereafter, on the 25th day of January, 1933, a judgment was entered in favor of H. A. Brooks and against Margaret Bevilockway in the sum of $8,837.35. No part of that judgment has been paid. On the trial of that action Independence Indemnity Company came forward and conducted the trial for the insured but subsequent to the entry of the judgment the insurance company was declared a bankrupt and went into liquidation.

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In December, 1932, Margaret Bevilockway, as a gift and without any consideration, transferred her automobile to the defendant, who in turn transferred it to the Howard Automobile Company, which gave him credit for it in the sum of $700 and sold to the defendant a new automobile.' When Mrs. Bevilockway transferred her car to her husband the two spouses owned a house and lot valued at $4,500 and which was mortgaged to the Equitable Life Insurance Company for $3,000. Mrs. Bevilockway was the owner of certain lots in San Mateo County of the value of $20. She was also the owner of certain personal property which was exempt and which she claimed to be exempt in the bankruptcy proceedings. The evidence discloses that the claim against the insurance company had been presented but the record does not disclose what value, if any, it had. The record does not disclose that any sum whatsoever was due or owing by Mrs. Bevilockway at the time she transferred her automobile excepting the claim of H. A. Brooks as hereinabove set forth.

On June 8, 1933, Margaret Bevilockway filed a voluntary petition in bankruptcy and later was declared a bankrupt and still later this plaintiff was appointed trustee in bankruptcy and commenced this, action to recover $700 alleged to be the value of the automobile so given to her husband. In the plaintiff’s complaint, it was alleged that “Margaret Bevilockway by reason of said transfer became and ever since has been insolvent and without any assets with which to pay said judgment or any part thereof”. On the trial the court made findings in favor of the plaintiff and against the defendant. The defendant has appealed and at this time he claims there was no evidence to support the finding on the allegation just quoted.