Opinion
Rehearing Granted Sept. 29, 1934.
Appeal from Superior Court, Los Angeles County; Charles E. Haas, Judge.
Action by James L. McDanels against the General Insurance Company of America and another. Judgment for defendants, and plaintiff appeals.
Affirmed.
COUNSEL
Koenig & Brunton, of Los Angeles, for appellant.
Joe Crider, Jr., of Los Angeles, for respondents.
OPINION
CRAIG, Acting Presiding Justice.
Plaintiff McDanels was injured in an automobile accident and a judgment for personal injuries there sustained was recovered against one Haag. Prior to the accident Haag had secured a liability insurance policy from respondent companies. At the time of trial of the personal injury action Haag did not appear. Numerous continuances had been ordered because of his absence or inability to be present. McDanels then brought suit against respondents upon the insurance policy. Judgment was rendered against him, and he has appealed.
Prior to trial and rendition of judgment against the insured personally he was repeatedly requested by counsel for the companies to aid them in obtaining and furnishing information and witnesses and in preparing a defense in the action against them on the policy, but he failed so to do; and although he promised to be present at the trial, he could not be found. The policy contained a provision requiring that the assured report accidents, claims, suits, and co-operate with the companies in securing information, evidence, and attendance of witnesses, and in effecting settlements, preparing for trial, and prosecuting appeals. Upon such a condition of the case it is not possible to say as a matter of law that the insurers suffered no detriment from a failure to comply with the provisions last mentioned.
The principal question presented is whether or not a person injured by the automobile of another may after judgment against the latter for damages recover from his insurers upon a policy of insurance containing the above-mentioned clause as well as the usual provisions permitting the maintenance of an action notwithstanding insolvency, etc., of the insured, where the negligent party unquestionably has violated the provision first above stated.
Since the trial of the instant case our Supreme Court, in the leading case of Hynding v. Home Accident Insurance Co., 214 Cal. 743, 7 P.2d 999, 85 A. L. R. 13, has definitely decided this question. There, as here, the policy contained a clause "requiring the assured to report accidents, claims, and suits, and to cooperate with the company in securing information, evidence, the attendance of witnesses, and in effecting settlements and in prosecuting appeals." Also, as here, the policy contained no express forfeiture provision for violation of this stipulation. After extensive review of authorities the opinion concludes: "We see no escape from the conclusion that the violation of the co-operation clause by the assured was a valid defense against the injured party’s action. We say this with the knowledge that in some cases it may work a hardship on such party, who is ordinarily in no position to force the assured to co-operate." In view of this authority the law is, we think, settled in this jurisdiction on the issues presented on this appeal.
The judgment is affirmed.
We concur: DESMOND, J.; WILLIS, Justice pro tem.