VYN v. St. Paul Mercury Indemnlty Company and Royal Indemnity Company, Cross-Defendants and Respondents.*

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District Court of Appeal, First District, Division 1, California.

Stephen C. VYN, doing business as The Vyn Moving and Storage, Plaintiff and Respondent, v. NORTHWEST CASUALTY COMPANY, a corporation, et al., Defendants, Norwich Union Fire Insurance Society, etc. Defendant, Cross-Complainant and Appellant. St. Paul Mercury Indemnlty Company and Royal Indemnity Company, Cross-Defendants and Respondents.*

No. 16595.

Decided: March 16, 1956

Foley, Bramson & Limpert, San Mateo, for appellant. Edward A. Friend, San Francisco, for respondents.

Defendant-respondent Northwest Casualty Company has petitioned for a rehearing, claiming that the portion of the judgment in its favor (that it recover against the plaintiff on the complaint for its costs) is separate and independent from the portion of the judgment which awarded plaintiff $6,600, plus costs, against defendant-appellant Norwich Union Fire Insurance Society, Limited, and that the reversal of the latter portion does not authorize reversal of the former portion, particularly in view of the fact that the plaintiff did not appeal.

Petitioner overlooks the principles enunciated in Osborn v. Osborn, 42 Cal.2d 358, 366–367, 267 P.2d 333, and cases there cited, principles which we are persuaded apply here. “(T)he failure to take an appeal demonstrates only satisfaction with the judgment as is, not as changed by a partial reversal. One may elect to stand upon a judgment which, he believes, although largely in his favor, does not give him all of the benefits to which he is entitled. To avoid the time and expense of further litigation, he may be persuaded to permit the unfavorable portions to stand in reliance upon the benefits received in the other parts.' American Enterprise, Inc., v. Van Winkle, 39 Cal.2d 210, 221, 246 P.2d 935, 940.' At page 367 of 42 Cal.2d, at page 338 of 267 P.2d. Both portions of the judgment in the instant case turned on the finding that plaintiff had insurance contracts with the Northwest, the St. Paul and the Norwich companies but that the Northwest and the St. Paul policies had ‘other insurance’ clauses whereas the Norwich policy did not. Reversal upon the ground that plaintiff had no contract with Norwich, removes the base for each portion of the judgment. As said in the Osborn case, ‘Since both parts of the judgment embrace the identical issue * * * we have jurisdiction to review the entire judgment.’ At page 367 of 42 Cal.2d, at page 338 of 267 P.2d.

The petition for a rehearing is denied.

FER CURIAM.