Bartholomew v. Cross

MARKS, J.

This is a motion to dismiss the appeal on the ground that the record on appeal is not properly certified so that there is no record on which the issues may be determined.

Plaintiff commenced this action against Lyle G. and Ella Cross to recover damages for personal injuries suffered by him when he was struck by their automobile. Defendants answered denying negligence and alleging the contributory negligence of plaintiff.

On May 23d, 1940, the State Compensation Insurance Fund filed a notice of lien on any settlement or judgment in favor of plaintiff by reason of its becoming obligated to plaintiff under its contract of compensation insurance issued to the Orange County District Council of Carpenters, the employer of plaintiff.

On August 1, 1940, defendants filed a notice of motion which was served on plaintiff and his attorneys, Orange County District Council of Carpenters, and State Compensation Insurance Fund and its attorney, informing them that plaintiff and defendants intended to enter into a compromise of all those portions of plaintiff’s demand against defendants ‘1 except any claim that Orange County District Council of Carpenters, plaintiff’s employer, or State Compensation Insurance Fund, its compensation insurance carrier, may now, or in the future, have by reason of payments made or to be made for compensation, medical, hospital or other expenditures under the provisions of Division IV of

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the Labor Code.” Attached to the notice of motion were copies of a contract between plaintiff and defendant and an unexecuted copy of a proposed release of those portions of plaintiff’s demands to which the State Compensation Insurance Fund was not subrogated under the provisions of the Labor Code.

Under date of August 15, 1940, the trial court approved the settlement and the contract of release whereby $2,850 would be paid plaintiff. The order specifically recited that the settlement did “not include any claim or claims of the Orange County District Council of Carpenters or State Compensation Insurance Fund which they may have by reason of payments made or in the future may make for compensation, medical, hospital or other expenditures under the provisions of division IV of the Labor Code of the State of California. . . . That the full amount of said compromise and settlement, to-wit, $2850.00 is free of any lien of the claim or claims of the Orange County District Council of Carpenters or of the claim or claims of the State Compensation Insurance Fund which they might now or in the future have by reason of payments made or to be made for compensation, medical, hospital or other expenditures under the provisions of division IV of the Labor Code of the State of California.”