Coughran

Appellee having been injured in an automobile collision (automobile will be termed car herein) brought suit against R. O. Anthony and Helen B. Anthony charging negligence in driving of the car to Plelen B. Anthony, wife of the registered owner. R. O. Anthony carried automobile insurance against such casualties in the appellant company. The appellant company, upon being advised of the accident, appeared under a nonwaiver agreement. Judgment was recovered by appellee against R. O. Anthony and Helen B. Anthony for $5,000, it not being paid execution was issued and returned unsatisfied. Suit was then prosecuted against the appellant insurance company and a trial by jury was waived, and the court after hearing the evidence and argument of the lawyers made and filed findings of fact and conclusions of law and entered judgment in favor of the appellee, to reverse which this appeal is prosecuted.

The court’s attention is challenged to sixteen errors; all errors may be classified in a group of four:

*241 First, is the judgment in the state court res judicata?

Second, does the evidence support the findings of fact?

Third, do the findings of fact support the judgment?

Fourth, do the…

(dissenting).

The appellee, James D. Coughran, was injured as a result of the operation of an automobile belonging to R. O. Anthony, to 'whom the appellant has issued a policy of insurance, which under the terms of the policy and under the law of California gave a right of action thereon to a person so injured in the event the insured was bankrupt or insolvent. Calif.Stats.1919, c. 367, p. 776. This action is of that nature. The appellant interposed several defenses: It denied that the appellee owned the judgment, and that the insured was insolvent. It alleged "that the insured had not performed all the terms of the policy because at the time of the accident the automobile was not being operated by the insured or wife or by anyone with the consent and permission of the insured, and upon the further ground that the insured and his wife, Helen B. Anthony, had made false and fraudulent representations to the appellant as to who was driving and operating the car at the time of the accident, and that the insured and Helen B. Anthony failed to cooperate with the appellant in the defense of this action, as required by the policy. In a second separate defense it was alleged that the…