Belt Casualty Co. v. Furman

SHENK, J.

This is an appeal by the plaintiff from judgments in favor of the defendant, William Furman, and the interveners in an action to rescind a policy of automobile indemnity insurance.

The policy was issued by the plaintiff to the defendant Furman in February, 1930. Under the contract the plain

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tiff agreed to indemnify the defendant against liability for bodily injuries resulting from the defendant’s operation of a certain De Soto automobile. In July, 1930, the defendant, while driving the automobile in San Francisco, collided with a street-car. As a result of the collision two passengers in his automobile, Sadie Narins and Gertie Miller, suffered bodily injuries. They filed suits against Furman and on November 29, 1930, recovered judgments in the sums of $5,000 and $2,842.50, respectively. Those judgments have become final. On December 22, 1930, the present action was commenced by the insurance company against its assured, Furman, to rescind and cancel the contract of insurance by reason of the alleged breach by the defendant of a clause in the policy providing that the assured, when requested by the company, shall render all co-operation and assistance in his power in respect to any claim'made or suit brought on account of bodily injuries resulting to persons by reason of the operation of said automobile.

On February 7, 1931, by leave of court, Sadie Narins and Gertie Miller filed complaints in intervention based on the judgments recovered by them and for affirmative relief against the plaintiff for the amounts thereof, with interest. Judgment was entered against the plaintiff Belt Casualty Company, on its complaint for rescission. Judgments were also rendered in favor of the interveners and against the company for the amounts of the judgments recovered by the former in their actions against the defendant Furman.

On its appeal from those judgments the Belt Casualty Company makes two major contentions.

The plaintiff does not contend that the interveners have not sufficient interest in the action or in the success of the defendant therein to give them the right to intervene. But, if we understand it correctly, its claim is that the interveners may not be permitted to join in an action in equity for rescission on the claims asserted by them inasmuch as their complaints set up distinct causes of action which sound in contract and which seek affirmative relief that could be recovered in actions at law; that thereby the scope of the equitable action is enlarged contrary to the meaning and intent of section 387 of the Code of Civil Procedure. If such a general statement be declared as a correct proposition of law, the result would appear to be a