Bias v. Ohio Farmers Indemnity Co.

KNIGHT, J.

A judgment for damages in the sum of $1250 was obtained by Florence Wilson against Lee J. Miller on account of personal injuries received by her through the negligent operation of an automobile by Miller, and on appeal the judgment was affirmed.

(Wilson

v.

Miller,

1 Cal. App. (2d) 514 [36 Pac. (2d) 843].) At the time of the accident Miller was insured under an indemnity policy which by virtue of the provisions of the statute (Stats. 1919, p. 776, now sec. 11580 of the Insurance Code) and under the terms of the policy inured to the benefit of any person negligently injured by the insured. Following the entry of the judgment in favor of Florence Wilson she assigned the same and all sums of money to be had or obtained by means thereof to A. B. Bias; and he brought the present action against the insurance carrier on said policy to recover the amount of said judgment. Four separate defenses were interposed by the answer, and as a result of the trial which was had before the court without a jury, judgment was entered in favor of the plaintiff, from which the insurance carrier prosecutes this appeal.

The appeal was taken on the judgment roll, and two main points are urged for reversal. Neither of them is related to any of the four defenses urged at the trial. They are in substance, first, that the right acquired by an injured party under the statute to sue on the indemnity policy is not assignable; and secondly, that in any event the purported assignment is legally insufficient to transfer to plaintiff any of the rights inuring to the injured party under the policy.

So far as the record shows, no demurrer was interposed to the complaint, nor were either of the points now urged by appellant for reversal made an issue before the trial court by way of answer. Assuming that said points may be raised for the first time on appeal, we find no merit therein.

[16]

It was definitely held by the Supreme Court in the ease of

Malmgren

v.