Rimington v. General Accident Group of Insurance Companies

[395]

PEEK, P. J.

Defendant Ed Rimington appeals from an order striking his cross-complaint for declaratory relief, which order also sustained cross-defendants’ demurrer to the cross-complaint without leave to amend.

Plaintiff Stockton Husk Company filed a complaint by which it sought a determination of the rights and liabilities of Rimington, General Accident Group of Insurance Companies, Birmingham Fire Insurance Company, the American Insurance Company, and others not concerned in this appeal. The complaint charged that Rimington, the alleged agent of the named defendants, orally agreed to insure plaintiff’s corn husk crop in the amount of $41,000 against loss or destruction by fire for a premium to be computed later by Rimington and billed to plaintiff; that the amount of the policy was to be allocated among the defendant companies; that the following day the corn husk crop was totally destroyed by fire; that plaintiff notified defendants of the loss; that each of the defendants denied liability, contending that no policy of insurance was then in existence; and that by reason of the foregoing, a controversy existed. The complaint concluded with the prayer that the rights and obligations of the parties and the extent thereof be declared.

The answer of Birmingham and American denied that Rimington was an authorized agent for them, and for that reason there was no binding agreement of insurance with plaintiff. General admitted an agency agreement with Rimington, but denied that Rimington intended or purported to act on its behalf in regard to insuring plaintiff’s corn husk crop. A like allegation was made in Rimington’s answer.

Subsequently, Rimington filed a cross-complaint against defendants Birmingham, American, and General, wherein he sought a judgment declaring the rights and liabilities of cross-defendants; that if the court determined that any sum was due plaintiff, the court should determine that the liability is that of cross-defendants; that he was entitled to be indemnified by cross-defendants in the amount of any judgment that might be rendered against him; and that he was entitled to damages for loss of reputation and damage to his insurance business, together with costs and attorney’s fees.

Cross-defendants, Birmingham jointly with American and General concurrently, moved to strike the cross-complaint on the ground that it was “premature, inappropriate, unnecessary and mere surplusage in the present action,”