Burbank v. National Casualty Co.

BRUTON, J., pro tem. This action against appellant casualty company arose out of an automobile collision between the automobiles of and driven by appellant’s assured, Mr. J. M. McIntyre, and Mr. Willie Burbank. Mrs. Julia J. Burbank, the wife of Willie Burbank, who was riding in the Burbank ear at the time, was injured. Thereafter the Bur-[484]banks brought suit against McIntyre and final judgment was recovered in their favor in the sum of $7,000 on April 3, 1934. This judgment was not paid either by McIntyre or appellant and this action was instituted by the Burbanks against the appellant on its policy of insurance, whereby it insured McIntyre against liability imposed by law for personal injuries caused by the operation of his automobile. During the pendency of the action Willie Burbank died and Julia J. Burbank, as the administratrix of his estate, was substituted as a party plaintiff.- Plaintiff recovered judgment for $5,000 and costs, the full amount of the insurance coverage.

Upon the trial, which was before a jury, the principal facts were stipulated to in writing, the pertinent part of which is as follows:

“It is hereby stipulated and agreed by and between the parties to the above-entitled action, as agreed facts in this case, that on the 4th day of August, 1931, the defendant, National Casualty Company of Detroit, Michigan, and J. M. McIntyre made and entered into a contract of insurance whereby the defendant insured the said J. M. McIntyre against public liability on a 1931 Plymouth coupe automobile for a period of one year, and the said J. M. McIntyre paid the premium as provided for in said policy.

“That thereafter on the 19th day of November, 1931, the said J. M. McIntyre was involved in an automobile accident, when his car and a ear driven by Willie Burbank collided at Berenda in the County of Madera, State of California; that on the 7th day of December, 1931, a complaint was sworn to in the Justice’s Court of the Second Township in the County of Madera, State of California, by Willie Burbank, charging John Doe with reckless driving, said charge growing out of said collision; that thereafter J. M. McIntyre was arrested on said complaint and on the 13th day of January, 1932, appeared before the Judge in said Justice’s Court, was arraigned and entered a plea of not guilty; that on the 17th day of February, 1932, J. M. McIntyre received a letter addressed to Box 415, Coalinga, California, signed by Joe Barcroft of Barcroft & Barcroft, attorneys at law, Madera, California, advising him that the wife of Mr. W. Burbank had suffered injuries as a result of the collision on November 19, 1931, and making claim for damages.