Key Insurance Exchange v. Washington

Opinion

ELKINGTON, J.

In a declaratory relief action tried to the court it was adjudged that plaintiff Key Insurance Exchange had no duty to “defend or indemnify” defendant Benjamin F. Horne in an action commenced against him by defendant Bert Washington. Defendant Washington alone appeals from the judgment.

The earlier action against Horne was brought to recover for personal

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injuries sustained by Washington, a passenger, when a truck owned and driven by Home went out of control and crashed. Key Insurance Exchange had written an automobile liability insurance policy covering Horne’s track. The policy contained a provision stating:

“This policy does not apply

. . .

to bodily injury to any employee of the insured arising out of and in the course of

. . .

employment by the insured.”

(Italics added.)

Following trial of the declaratory relief action the court found “At the time of said accident Washington was an employee of Home and any injuries sustained in said accident by Washington were sustained in the course and scope of his employment by Horne.”

Since Washington’s principal contention on his appeal is that the court’s findings on “employment” are unsupported by the evidence, we point out the well-known “substantial evidence” rale.

Green Trees Enterprises, Inc.

v.

Palm Springs Alpine Estates, Inc.,

66 Cal.2d 782, 784-785 [59 Cal.Rptr. 141, 427 P.2d 805], expresses this rale as follows: “When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court

begins