Sutherland

This i~ an appeal taken from a judgment for the respondent, Fred A. Sutherland, against the California Highway Indemnity Exchange, an inter-insurance exchange, upon a liability insurance policy issued under date December 11, 1919, by the appellant to “Sutherland Tia Juana Stages.”

The action was brought to obtain reimbursement for the amount of a judgment with interest recovered by Annie Powers et al. against said Fred A. Sutherland and Mariana Gear impleaded as doing business under said name of Sutherland Tia Juana Stages in operating an automobile stage line for the carriage of passengers between San Diego, California, and Tia Juana, Mexico; it being alleged in that action (referred to herein as the Powers case) that, in the operation of said autostage line, the stage in which one Frank Powers was being transported overturned, causing his instant death. The judgment recovered in favor of Powers was enforced by execution against Fred A. Sutherland and was paid by him prior to the commencement of this action.

The two principal questions raised by appellant on this appeal are, (1) That there is a complete failure of proof upon the part of plaintiff that he was ever at any time an…