Langley v. Zurich General Accident & Liability Insurance

PRESTON, J.

Appeal by defendant from judgment for plaintiffs in an action to recover upon a policy of automobile liability insurance issued by said defendant in favor of one W. T. Holland.

Plaintiffs, through the negligence of said Holland, suffered damage as the result of an automobile collision. They commenced an action against him under the name of W. H. instead of W. T. Holland. Service by publication was ordered and later a default judgment in the sum of $2,500 and costs was entered against him and in favor of plaintiffs. In order to recover the amount of said judgment, plaintiffs thereafter commenced the present action against defendant, as the insurer of W. T. Holland, whom they alleged to be the very Holland involved in the collision, theretofore sued as W. H. instead of W. T. Holland. Defendant offered no evidence and judgment was rendered for plaintiffs. Defendant thereupon appealed and, upon consideration of the cause by the honorable District Court of Appeal for the

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Third Appellate District, the said judgment was reversed. For a detailed statement of the facts and issues involved, reference is hereby made to said decision reported in volume 97 California Appellate Reports, at page 434.

The cause was then retried, pursuant to said judgment of reversal, upon limited issues suggested by the following language contained in said decision: “The judgment in the case of

J. B. Langley and Lottie M. Langley

v.

W. H. Holland

is not void on its face. It is a valid judgment against W. H. Holland, but, of course, would not be a judgment against W. T. Holland unless it was satisfactorily established that the W. H. Holland named in said judgment and the W. T. Holland named in the instant case are one and the same person and that the said W. T. Holland had the notice of said action required by law. ... It may be that, on a retrial of this case, respondent will be able to produce evidence that in fact W. T. Holland received the complaint and summons which was mailed to W. H. Holland, painter, at Los Angeles, California, General Delivery, as aforesaid. The production of this evidence would be in line with the cases of (citing authority). ...” At the conclusion of .the trial the court found for plaintiffs. Judgment followed in their favor, and, as above stated, defendant has appealed.