Campbell v. Allstate Ins. Co.

60 Cal.2d 303 (1963) 384 P.2d 155 32 Cal. Rptr. 827 LOVI CAMPBELL et al., Plaintiffs and Appellants,

v.

ALLSTATE INSURANCE COMPANY, Defendant and Respondent.

Docket No. S.F. 21322. Supreme Court of California. In Bank.

August 15, 1963. [304] Athearn & Athearn, Forden Athearn and Barry M. Wally for Plaintiffs and Appellants.

Walcom & Harmon and Leo J. Walcom for Defendant and Respondent.

GIBSON, C.J.

Plaintiffs brought this action to compel defendant insurer to pay a default judgment they had obtained against its insured, Marvin Hammer. The court, sitting without a jury, denied recovery, and plaintiffs have appealed.

In November 1954 plaintiffs stopped their automobile at a stoplight and were struck from the rear by an automobile driven by Hammer. The police report of the accident states that Hammer was cited for following too closely and for driving with an expired license, that he admitted he had been drinking, and that he refused to give a written statement. He told plaintiffs that he was insured and that "everything would be taken care of."

On the day of the accident Hammer notified defendant by telegram that he had been involved in a collision and that his car had been towed to a certain garage. The telegram contained Hammer's address and policy number, and defendant thereafter tried to contact him at his home and business addresses without success. Messages for him were left with his daughter and estranged wife, but he did not reply. Defendant wrote Hammer two letters stating that a serious personal injury had resulted from the accident, that under a cooperation clause in the policy he was required to give defendant a statement as to his version of the accident, and that [305] defendant was not waiving any of its rights under the policy. The first letter was apparently returned to defendant. Defendant got a signed return receipt for the second letter, but Hammer did not reply.