Mitchell v. Holmes

PULLEN, P. J.

The Union Indemnity Company issued a. policy of insurance to William Willis insuring his automobile against damage by collision. Thereafter a collision did occur between the automobile of Willis and one owned and operated by Martin M. Holmes. As a result of this collision the car of

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Willis was damaged beyond repair and on July 16, 1930, the Union Indemnity Company under the terms of the policy of insurance, paid to him the sum.of $350. The salvage value of the damaged car amounted to $45, which sum was collected by Union Indemnity Company, making a net loss of $305, which was sustained by Uniqn Indemnity Company.

This action was commenced by Union Indemnity Company against Margaret G. Holmes and Martin M. Holmes, respondents herein, under subrogation rights granted it in its policy of insurance issued to Willis. The accident was caused by the admitted negligence of respondents. An answer was filed by respondents pleading as a special defense, a written release executed by William Willis and his wife Gertrude C. Willis, wherein in consideration of the sum of $2,000 they released respondents of all claim, demand, right or cause of action by reason of damage either to person or property as a result of the collision. The release was executed July 16, 1930.

On July 19,1930, the Union Indemnity Company addressed to respondents a letter advising them the Union Indemnity Company carried collision insurance on the car of Mr. Willis and had paid a loss thereon in the sum of $350.

Subsequent to the commencement of this action the Union Indemnity Company became insolvent and B. Forrest Mitchell as insurance commissioner of the state of California, was in its place as plaintiff.

The trial court made findings of fact in accordance with the allegations of the complaint and found that “at the time of the payment of said sum of $2,000.00 and the execution of said release, the defendants . . . and their agents had no knowledge . . . that said Union Indemnity Company . . . was subrogated to the rights of said William Willis in . . . any amount”. Judgment was entered in accordance therewith. From which judgment plaintiff appeals asserting that there is no substantial evidence to sustain the finding of the trial court.