Malmgren v. Southwestern Automobile Insurance

SEAWELL, J.

Two separate appeals are here presented. It is agreed that they may be considered together. The first, numbered S. F. No. 11460, is taken from the order denying appellant’s motion for a change of the place of trial, and the second, numbered S. F. No. 11683, is from the final judgment entered in said action. The facts necessary to an understanding of the grounds of said appeals will be revealed as the discussion of the cases proceeds.

Grace Elizabeth Malmgren, wife of coplaintiff E. J. Malmgren, recovered a judgment in the superior court of the county of Alameda in the sum of five thousand dollars against one J. Arthur Eddy for bodily injuries inflicted upon her in the county of Alameda as the result of the careless and negligent manner in which said Eddy drove and operated an automobile owned by him. The judgment became final before the instant suit was filed. Appellant, a corporation engaged in a general automobile insurance business, with its principal place of business in the county of Los Angeles, was the insurance carrier of said Eddy. The latter being insolvent and unable to respond in damages or to pay any part of said judgment, the present action was brought in the county of Alameda against appellant corporation upon a policy of indemnity insurance issued by it to said J. Arthur Eddy to indemnify him against loss from the liability imposed

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law upon the assured for damages on account of bodily injuries suffered by any person as the result of an accident occurring and caused by reason of the use, ownership, or maintenance of said automobile, as provided by an act entitled “An act relating to actions against an insurance carrier when the insured person is insolvent or bankrupt, or without property sufficient to satisfy execution on account of loss or damage insured against, and requiring policy to be exhibited in certain cases.’'" (Stats. 1919, p. 776.) The portion of said statute which bears upon the question presented by these appeals reads:

“No policy of insurance against loss or damage resulting from accident to, or injury suffered by another person and for which the person insured is liable, . . . shall be issued or delivered to any person in this state by any domestic or foreign insurance company, authorized to do business in this state, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss occasioned during the life of such policy and stating that in case judgment shall be secured against the insured in an action -brought by the injured person or his heirs or personal representatives, in case death resulted from the accident, then an action may be brought against the company, on the policy and subject to its terms and limitations, by such injured person, his heirs or personal representatives as the case may be, to recover on said judgment. Upon any proceeding supplementary to execution the judgment debtor may be required to exhibit any policy carried by btm insuring against the loss or damage for which judgment shall have been obtained.”