Massachusetts Bonding & Insurance v. San Francisco-Oakland Terminal Railways

RICHARDS, J.

This is an appeal from a judgment in favor of plaintiff for the sum of $212.82 and costs of suit. The facts of the case, so far as pertinent to the determination of the main question presented upon this appeal, are these: On October 1, 1914, one Manuel Silva was an employee of one A. H. Kopperud, and was engaged in work for his employer on Fourteenth Avenue in the city of Oakland, when a streetcar, operated by or for the defendant, coming along said Fourteenth Avenue came in contact with an auto truck which was standing near where said Silva was at work, and caused said auto truck to strike the latter and severely injure him. At the time of said injury Silva’s employer, Kopperud, was carrying insurance for his employee pursuant to the provisions of the Workmen’s Compensation Act of 1913, the plaintiff herein being his insurer. Immediately after said injury the plaintiff caused said Silva to be removed to a hospital and there provided with medical and surgical treatment and medicines, amounting in all to the sum of $212.82. Thereafter, and on the sixteenth day of January, 1915, Silva undertook to make a settlement of his claim for damages for its alleged negligent acts and his consequent injuries with the defendant herein, in the course of which the defendant paid to him the sum of three hundred dollars, receiving therefor from said Silva a full receipt and discharge of all claims and demands on account of said injury. Thereafter said Silva filed

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an application for an award against his employer, Kopperud, and the latter’s insurer, said plaintiff, before the Industrial Accident Commission, which came on for decision in the month of July, 1915. From the decision of the commissioner then rendered it appears that a showing was made as to the acceptance by said Silva of the sum of three hundred dollars from the defendant herein, and of the execution by him of the receipt purporting to be a full release of said defendant from all liability on account of his said injury. The commission thereupon made an award in favor of said applicant in the sum of $103.07, which the plaintiff herein paid, and which, with certain sums which it had already expended for medicines, etc., made up the aggregate of $212.82, for which it brings this action.

The complaint herein is denominated a complaint in equity, and in it the plaintiff avers substantially the foregoing facts, and further avers that the defendant herein, in making the aforesaid settlement with said Silva, did so with knowledge that said Silva had a lawful claim for compensation against his employer and the latter’s insurer which was presentable before the Industrial Accident Commission, and that the intent of the defendant in making such settlement and in taking said full receipt and release thereon was to destroy any right which the plaintiff, as the insurance carrier of said Silva’s employer, had or might have to commence and prosecute this action against said defendant, pursuant to the provisions of the Workmen’s Compensation Act. The plaintiff also included in its complaint a demand for the sum of one hundred dollars as attorney’s fees.