Coolidge

This is an appeal from an order granting a motion for a new trial in an action upon an insurance policy to enforce the refunding of money paid by the assured to satisfy a judgment against him which was recovered on account of an automobile casualty.

The defendant is an accident insurance corporation. The plaintiff carried an insurance policy with this company upon his Buiclc coach automobile. This policy specifically exempted the defendant from liability unless “the assured upon the occurrence of an accident, shall give immediate notice thereof”. It further provided that “The company shall not be liable under this policy for: ... accidents occurring while the automobiles are . . . used for towing or propelling trailers or other vehicles used as trailers.” January 29, 1926, the plaintiff was driving his machine, with a trailer loaded with sheep attached thereto, along the Redwood highway north of Willits. In attempting to pass the plaintiff’s automobile and trailer from the rear, a man by the name of John Dahl who was riding in his own machine, was forced over the grade and was thereby seriously injured. His nose was broken, his skull was fractured and his left eye was gouged out…