Ohio Casualty Insurance v. Northwestern Mutual Insurance

Opinion

COUGHLIN, J. Plaintiff paid an insurance loss covered by a binder agreement; sought recovery of part of the loss from defendants under a policy of insurance issued by defendant Northwestern Security Insurance Company, hereinafter referred to as Security; and appeals from judgments declaring the latter policy had been cancelled effectively before the loss occurred.

Two judgments were entered in the action, one on August 5, 1969 and the other on September 2, 1969. The first judgment was entered without [207]filing findings of fact and conclusions of law, although plaintiff had requested such pursuant to and within the time prescribed by Code of Civil Procedure section 632 and rule 232 of California Rules of Court. Thereafter findings of fact and conclusions of law were filed. Following this the second judgment was entered.

Plaintiff appealed from both judgments contending it was error to enter the first judgment without findings of fact, and it was error to enter the second judgment as there may only be one judgment in an action, and the court had no authority to modify the first judgment by a second judgment.

A judgment entered without findings where findings are required is a nullity and is superseded by a subsequent judgment based on findings. (Supple v. Luckenbach, 12 Cal.2d 319, 322 [84 P.2d 52]; Estate of Hewitt, 160 Cal.App.2d 584, 587 [325 P.2d 113]; Petroleum Midway Co. v. Zahn, 62 Cal.App.2d 645, 652 [145 P.2d 371].) Contrary to plaintiff’s contention, the second judgment did not modify the first judgment. The judgment of September 2, 1969, was the only valid judgment in the case. (Hulbert v. All Night and Day Bank, 29 Cal.App. 765, 767 [157 P. 546].) In light of the circumstances, the appeal from the judgment entered August 5, 1969, is moot and, for this reason, should be dismissed.

The facts in the case on its merits will be stated in accord with the rule on appeal; the evidence most favorable to the judgment is accepted whereas the evidence supporting a contrary conclusion is rejected. (Shields v. Shields, 200 Cal.App.2d 99, 102 [19 Cal.Rptr. 129]; Apparel Mfrs. Supply Co. v. National Auto. & Cas. Ins. Co., 189 Cal.App.2d 443, 453 [11 Cal.Rptr. 380].)

On March 2, 1966, Security issued its policy of automobile insurance to Ronald Stolberg covering a 1966 Ford automobile, in reliance upon information in an application by the latter he had no accidents and only one traffic citation within the previous three years. In due course the premium for the policy was paid by or on behalf of the insured. Following receipt of the application for insurance, Security conducted an investigation respecting the information contained therein and learned the representation Ronald had no accidents and only one traffic citation within the previous three years was false; learned he, in fact, actually had six traffic citations and two accidents within that time; and thereafter requested its general agent, Joseph S. Zboray, to obtain the policy for cancellation because of the false representations in the application. On March 29, 1966, the general agent notified Ronald’s father, Ralph Stolberg, who had been instrumental in negotiating issuance of the policy to his son, Security requested surrender of the policy for cancellation because of the misrepresentations respecting