Billington

Plaintiff was injured in an automobile accident on March 20, 1962, while riding as a guest in the car of Michael James Giesler, who was defendant’s insured. She filed an action alleging that Giesler was guilty of wilful misconduct and intoxication, and defendant filed an answer on Giesler’s behalf, asserting plaintiff’s contributory negligence and assumption of risk as defenses. Giesler failed to appear for his deposition after numerous attempts by defendant to persuade him to do sp, and the trial court granted plaintiff’s motion made under section 2034, subdivision (d), of the Code of Civil Procedure, to strike the answer. A default judgment against Giesler was entered in the sum of $51,716.32.

Plaintiff subsequently filed the present action, in which she seeks to recover $10,000 from defendant, the liability limit set forth in the policy. Defendant resisted the action on the ground that the policy contained a requirement for Giesler to cooperate in the defense of the action, that he had failed to do so, and that defendant was prejudiced by his conduct because he “would have had a good and legitimate defense” if he had cooperated.

The trial court found that Giesler had failed…