Bear Film Co. v. Indemnity Insurance Co.

STURTEVANT, J.

The plaintiff brought an action to recover on an insurance policy. After the plaintiff had introduced its evidence the trial court granted a motion for a nonsuit. From the judgment entered the plaintiff has appealed.

On the 28th day of May, 1933, the automobile being driven by M. D. Worth and two other automobiles collided on the highway between Watsonville and Santa Cruz in Santa Cruz County. Three different occupants of one of the other automobiles were injured. Three different actions were commenced to recover damages. In each action the plaintiff named as defendants M. D. Worth, this plaintiff, as his principal, and several fictitious names as defendants. The three actions were afterwards set down for trial in the superior court at Santa Cruz and one of said actions was almost completely tried when an agreement to settle was made. On October 16, 1934, the settlement was completed and as we understand the record the three actions were dismissed. At the time of the settlement Mr. Albert A. Hansen, president of the plaintiff corporation, was present, was advised by Mr. Stanford Smith, the attorney appearing for the plaintiff,' and, being advised as to the facts, drew his check in the sum of $1500 in payment of the amount allotted against this plaintiff for the damages claimed in the three different actions. Thereafter, on the 4th day of June, 1936, the plaintiff commenced this action against the defendant as its insurance carrier to recover $1500 and interest thereon, being the amount it had paid in the above-mentioned settlement. In the last-named action the insurance company answered and a trial was had before the trial court sitting with a jury. The plaintiff called one witness, Mr. A. A. Hansen. That witness was examined and cross-examined. From the testimony so

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given by the witness it appeared without contradiction that

at the

time of the accident M. D. Worth was an independent contractor. The motion for a nonsuit was based on the ground that the plaintiff had failed to offer any evidence showing or tending to show that this was a loss covered or contemplated by the terms or provisions of the policy of insurance issued by defendant to the plaintiff. In granting the motion the learned judge of the trial court stated: “In my judgment the plaintiff herein has failed to prove a sufficient ease for the jury. Plaintiff’s evidence shows that at the time of the accident in question, M. D. Worth, the driver of the automobile, was guilty of negligence and was liable for damages; therefore the only inference to be drawn from the evidence in this case was that Worth was an independent operator and that no legal liability was imposed by law upon the Bear Film Company, the plaintiff in this action, and that the case is not covered by the policy in evidence because Worth, as I have stated, was an independent contractor, as the evidence in this case shows and was not the agent or servant of the plaintiff at the time of the accident. Hence the defendant in this case is not liable under the policy in question.” That M. D. Worth, at the time of the accident, was an independent contractor, as held by the trial court, was under the facts clearly correct.