Lopez v. Pacific Electric Railway Co.

WEYAND, J.,

pro

tem.

On May 19, 1923, one Estanislao Martinez was killed at Wilmington, Los Angeles County, by the alleged negligence of the defendant Pacific Electric Railway Company. Within one year thereafter, and on May 7, 1924, Maria de Los Angeles Lopez filed her complaint in the superior court of Los Angeles County for damages in the sum of fifteen thousand dollars, she claiming to be the widow and the sole heir at law of the deceased Martinez.

This action did not come to trial until September 18, 1925, more than one year after the death of Martinez. Upon the last-named date, pursuant to a written stipulation of the attorneys representing both the plaintiff and the defendant company, an order was made permitting the American Mutual Liability Insurance Company to join as a plaintiff. As much discussion follows with regard to the wording of this stipulation and order we will give them in full. The stipulation was worded as follows: “It is hereby stipulated between the above named parties and the American Mutual Liability Insurance Company, a corporation, through their respective counsel, that the last named corporation was the compensation insurance carrier of the Banning Company, the employer of Estanislao Martinez, deceased, at the time of the injury and death for which recovery is sought, and may be joined as a party plaintiff in the above entitled action, and that it shall have

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a first lien on any amount awarded to the above named plaintiff, such lien, however, to be limited in .extent to the amount of such expenditures as it may have made for compensation under the Workmen’s Compensation Act of 1917 as amended.”

The order of the court permitting the insurance company to join in the action as a plaintiff was worded as follows: “Pursuant to the written stipulation of the parties to this action, the order is now made that the American Mutual Liability Insurance Company, a Corporation, be joined as a party plaintiff along with Maria de Los Angeles Lopez, the present plaintiff.”

After the making of this order a jury was regularly impaneled, and the trial begun. Mrs. Lopez was called as a witness in her own behalf, and it developed from her testimony that the deceased had brothers and sisters living •who were not made parties to the action. It appeared that the deceased left surviving him neither parents nor offspring.