Davis v. California Highway Indemnity Exchange

CONREY, P. J.

On the fourteenth day of January, 1925, the plaintiff Nora Ellen Davis, while riding in an automo

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bile operated and controlled by one E. B. Brown, doing business as “Brown Auto Tours”, received certain physical injuries in an accident which resulted from negligent operation of said automobile. At that time there was existing and in force the indemnity policy on which judgment has been recovered in this action. The policy dated February 15, 1924, was issued to E. B. Brown, doing business as Brown Auto Tours of Los Angeles, California. Brown was referred to therein as “the subscriber”. The policy covered liability of the subscriber for injuries resulting from the operation of a certain described Lincoln automobile while used in the business of “auto tours”. It was provided that the policy should inure to and be for the benefit and protection of “anyone who shall sustain any damage or injury . ... by reason of negligence on the part of the driver or operator of the motor vehicle described herein, . . . when such motor vehicle and the driver or operator of same are duly licensed, have permit issued by the authority of the Board of Public Utilities, Los Angeles, California”. In this case it is not questioned that at the time of the accident both the vehicle and the driver or operator were duly licensed and permitted by the authority of said board of public utilities, and in accordance with an ordinance of the city requiring such license and permit as a condition for the lawful operation of such automobile. It was provided in the policy that “in case execution against the subscriber is returned unsatisfied in whole or in part in an action brought by the injured”, because of insolvency or bankruptcy of the subscriber, “or because sufficient property of the judgment debtor cannot be found to satisfy such execution, then an action may be maintained by the injured person . . . against the Exchange, subject to and under the terms of this contract for the amount of the judgment recovered in such action not exceeding the amount herein limited or the amount that the subscriber might have recovered against the Exchange under this contract in event of the judgment had been fully satisfied against him”.

The plaintiff, Mrs. Davis, .together with her husband, in an action to recover damages for the injuries received by her, obtained judgment against Brown in a sum exceeding the amount limited by the indemnity bond, which judgment