Strafiotis v. California Highway Indemnity Exchange

DOOLING, J.,

pro tem.

fAppeal from a judgment recovered upon a policy of indemnity insurance issued by appellant to one Marion P. Daniels, a jitney driver operating in San Francisco. Respondent recovered judgment for $6,000 and $67 costs on November 12, 1925, against Daniels, for personal injuries caused by the operation of his jitney bus. After an appeal this judgment was finally affirmed on May 14, 1928. Execution was issued on such judgment against Daniels and returned satisfied on September 11, 1928, only to the extent of $1200. Thereupon,

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after due demand upon appellant, respondent commenced suit to recover the unpaid balance of the judgment, with interest. • The trial court rendered judgment against appellant in the sum of $4,867, the amount of the unsatisfied portion of the principal sum of the judgment against Daniels, $91.50 costs of appeal, $41.15 costs of execution, together with interest on the sum of $5,067 from November 12, 1925, to September 11, 1928, and interest on the sum of $4,867 from September 12, 1928.

The only question on appeal is whether this judgment is in accordance with the terms of the policy of indemnity insurance issued by appellant to Daniels. The pertinent provisions of the policy provide as follows: Special agreement (a) indemnifies the insured “Against loss from . . . liability for damages on account of bodily injuries . . . accidentally suffered ... by any person or persons, not in the employ of the subscriber, resulting directly from the ownership, use or maintenance of any automobile described in the schedule herein contained. . . . The Exchange’s liability is limited to five thousand dollars ($5,000.00), for injury to or death of any one person . . . And in addition to said limited sums, the Exchange will pay the expense of litigation, and all costs taxed against the subscriber in any legal proceedings defended by the Exchange, together with any interest accruing after entry of judgment upon such part of said judgment as shall not be in excess of the limits of the Exchange’s liability herein expressed.” Section 13 of the general agreements of the policy reads: “No action shall lie against the attorney or any subscriber at the Exchange, to recover for any loss under this contract unless brought by the subscriber himself, nor to recover for any loss arising under clauses (a) or (c) of the Special Agreements unless brought by the subscriber himself to recover for money actually paid by him in satisfaction of a judgment after trial of the issue in a suit instituted within the period limited by the statute of limitations . . . provided, however, that the insolvency or bankruptcy of the subscriber shall not release the Exchange from the payment of damages (to a person not a party to this contract) for injury sustained or loss occasioned during the life of this contract, and in case execution against the subscriber is returned