Bernhard v. Delluaitante

[586]

STURTEVANT, J.

Violet R. Patten, the owner and operator of one automobile, and the defendant, the owner and operator of another automobile, had a collision between their cars. The former settled with her insurance carrier. It assigned its claim to the plaintiff. The latter sued the other owner. The trial court made findings in favor of the defendant and the plaintiff has appealed from the judgment and has brought up the judgment roll and an abbreviated bill of exceptions.

The trial court found as a fact that Miss Patten executed and delivered to the defendant, for a consideration of $500, a release which constituted a complete defense. The plaintiff contends it was wholly ineffectual because its assignor had been, at the time the release was executed, subrogated to all of the rights of Miss Patten. The defendant contends and the trial court found that at the time Miss Patten executed the release the defendant did not know she had been paid by her insurance carrier and that the latter had been subrogated to her rights and therefore the release had the full force and effect expressed on its face. The question then arises as to whether certain findings are supported by the evidence. It is the contention of the plaintiff that the release was accepted by the defendant and he paid to Miss Patten the consideration therefor after he had notice of the fact that Miss Patten’s insurance carrier had been subrogated to her rights and that such notice was embodied in a letter written May 25, 1932, by said carrier to the defendant. Said letter was in words and figures as follows:

“California State Automobile Association

“Inter-Insurance Bureau, General Offices

“150 Van Ness Avenue

“Telephone Hemlock 3400

“San Francisco, California.

“In reply please address Inter-Insurance Bureau.

“May 24, 1932.

“Claims.

“Mr. William Delluaitante

“210 Broad Street