Cardoza v. West American Commercial Insurance Co.

THOMPSON, J.

The defendant has appealed from a judgment which was rendered against it in a suit on an automobile casualty policy. It is contended the evidence fails to support the finding of the court and judgment.

The defendant was the insurer of an automobile owned by the plaintiff. The policy contains a clause exempting the insurance company from liability for damages resulting from an accident while the plaintiff’s automobile was being used to convey passengers for hire. June 20, 1931, while the plaintiff’s machine was being operated with his consent by his daughter, Belle Cardoza, a collision occurred with another automobile owned by J. W. Wheatley. Florence DeMartini, who was then riding in the plaintiff’s car, was injured as a result of the accident. In a suit for damages against the plaintiff and his daughter for personal injuries received as a result thereof, Miss DeMartini recovered judgment against the plaintiff for the sum of $5,698.17 and costs of suit. This action was then commenced for reimbursement against the insurance carrier. The cause was tried" by the court sitting without a jury. Among the findings which were adopted by the court favorable to the plaintiff, was one which determines that the insurance policy contains a clause exempting the defendant from liability for an accident which occurs while the plaintiff’s machine is being used to convey passengers for hire, but it was held that the car “was not at any time driven or operated . . . while carrying a passenger or passengers for consideration”. Judgment was accordingly rendered against the defendant. From that judgment this appeal was perfected.

The only question raised on appeal is whether there is substantial evidence to support the finding that the automobile was not being used at the time of the accident to convey a passenger for consideration. After carefully reading the entire record we are satisfied the evidence adequately supports the finding in question and that the judgment should therefore be affirmed. On appeal the rules applying to the determination of the sufficiency of the evidence

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to support the findings and judgment are all favorable to the prevailing party. Every reasonable inference that may be drawn from the record as a whole must be resolved in support of the judgment. When the testimony is conflicting, as it is in the present case, the weight of the evidence and the credibility of witnesses are questions for the determination of the trial court and its conclusions regarding those matters may not be disturbed on appeal in the absence of a clear abuse of its discretion. (2 Cal. Jur. 879, sec. 515.) In this case there is a hopeless conflict of evidence between the testimony of different witnesses, and sometimes a conflict of evidence appears to exist between different statements of the same witness. All these inconsistencies must be resolved in favor of the respondent. In determining whether the record adequately supports the finding that the plaintiff’s car was not being used at the time of the accident to convey a passenger for hire, we observe that some of the witnesses were apparently intellectually sluggish. The burden was on the defendant to prove its allegation that the policy was rendered void for the reason that the car was being used at the time of the accident to convey a passenger for hire. It was not a question as to whether some compensation had been paid to the daughter of the plaintiff in previous years for conveying a passenger, although that fact might throw some light on-the vital question as to whether it was being used for that purpose at the time of the accident. That circumstance was trivial. Such evidence regarding former transactions in a previous year is of small value. It is not charged that the plaintiff received pay for the use of his machine to convey passengers. The ladies who were involved in this accident had been employed in the cannery only nine days prior to the accident. They were friends. They ate their lunches together. It does not appear to have been the regular procedure for Belle Cardoza to always carry Florence DeMartini to and from the cannery. In response to the question, “How many times did you take Miss DeMartini to and from work in 1930?” Belle Cardoza said, “I just brought her from work a couple of times at night.” She testified positively that she had not received any money from Miss DeMartini for conveying her to or from the cannery during the season of 1931, when the accident occurred, or for conveying any other passenger, either during that season or at any other time, and That she never had any