Polk v. Garcia & Maggini Co.

KNIGHT, J.

The intervening plaintiff, London Guarantee & Accident Co., Inc., appeals from a judgment of non-suit. After the appeal was taken respondents were adjudged bankrupt, and the trustee in bankruptcy has declined to file a brief; therefore the appeal was submitted for decision on appellant’s brief. Upon examining the same, however, it becomes apparent that the points urged therein are insufficient to justify a reversal of the judgment.

The action 'was brought by the plaintiff Polk, an employee of L. C. Dibert Company, a corporation, against the respondents to recover damages for personal injuries sustained by Polk while working on premises operated by respondents. Appellant was the insurance carrier for the Dibert Company and on account of Polk's injuries appellant expended under its policy of workmen’s compensation insurance sums aggregating more than $4,000. Seeking reimbursement therefor, it commenced a separate action against respondents for such purpose (superior court No. 150,113), and subsequently appellant’s attorneys were substituted as attorneys for plaintiff in the action brought by Polk (superior court No. 150,029). Thereafter the separate action brought by appellant (No. 150,113) was dismissed; and the action brought by Polk (No. 150,029) was set for trial on January 17, 1928. Shortly before the date of trial, however, the officers of respondents called upon and effected a settlement with Polk for $425. At that time Polk stated to said officers, so they testified, that he was “pretty sore’’ at the insurance carrier, that his finances were low and he wanted to go east that night and was going. In consummation of such settlement Polk executed a written release, reading as follows:'

[408]

“San Francisco, California. January 12, 1928.

“In consideration of the sum of four hundred twenty-five dollars ($425.00) and for further good and valuable consideration, the undersigned hereby forever releases Garcia Maggini & Company from all claims or demands which he may now or in the future have against them and particularly such demands or claims as may arise out of injuries alleged to have been suffered by the undersigned on the 14th day of September, 1923, while working upon said company’s premises at 128 King Street, San Francisco, California. This is intended as a full release by the undersigned to said Garcia Maggini & Company with respect to all claims arising out of said alleged accident and all litigation pertaining thereto.