Fageol Truck & Coach Co. v. Pacific Indemnity Co.

This appeal by Pacific Indemnity Company is from the same judgment as that affirmed by our decision this day filed (No. 16600, ante, p. 731 [ 117 Pac. (2d) 661 ]). Other points, however, raised by this appeal require separate consideration.

1. It is contended that the conditional judgment transforms appellant’s excess insurance to a suretyship for Detroit’s financial responsibility. Pacific argues that if it should be forced to satisfy the judgment and attempted, as subrogee, to enforce its judgment against Detroit, it would upon Detroit’s application be restrained from such enforcement “upon the ground that it never requested Pacific to act as its surety.” If such a contention ever had any merit, it comes too late to avail appellant. It was not mentioned in Detroit’s appeal.

The V. S. I. endorsement of Pacific provides that “this insurance shall not apply nor contribute to the payment of any loss until all such specific insurance shall have been exhausted.” Notwithstanding this language, Pacific contends that its excess insurance never became effective because the face of Detroit’s policy exceeded the amount of the loss. But the clause quoted has the ring of intelligible…