Toon v. Pickwick Stages, Northern Division, Inc.

FINLAYSON, P. J.

This is an appeal from an order denying defendant’s motion to vacate a default judgment.

The action is one having for its purpose the recovery of damages for injuries suffered by plaintiff in an automobile accident alleged to have been caused by defendant’s negligence. Defendant, a California corporation having its principal place of business in the city of Los Angeles, is a common carrier of passengers by automobile stage. The complaint, which was filed in the superior court for Santa Barbara County on October 21, 1921, alleges that on March 14th of that year, in the city of Santa Barbara, the driver of one of defendant’s autostages so negligently operated his vehicle that it ran into the automobile which plaintiff was driving, thereby injuring the latter.

On October 26, 1921, in the city of Los Angeles, the summons and a copy of the complaint were served upon defendant’s secretary. On November 29, 1921, no appearance having been made by defendant within the time allowed by law therefor, plaintiff caused defendant’s default to be entered, and on December 30, 1921, after an

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hearing of evidence presented by plaintiff, the lower court entered a judgment in plaintiff’s favor. Defendant moved expeditiously to set aside the default and the judgment entered thereon by serving and filing on January 7, 1922, its notice of motion under section 473 of the Code of Civil Procedure. The showing made by defendant in support of its motion was not contradicted 'by any evidence on the part of plaintiff. The only question, therefore, is whether the facts set forth in the affidavits filed on behalf of defendant are sufficient to show that it would be an abuse of discretion to deny the motion to open the default.

The affidavits disclose the following: At the time of the accident defendant was insured against loss by the Califor

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nia Highway Indemnity Exchange, a mutual interinsuranee association having an office in the city of Los Angeles and hereafter referred to as the insurance carrier. The policy of insurance requires the insurance carrier to assume charge and control of all suits and of all litigation arising out of accidents wherein the insured is involved. The insurance carrier employs a “claims attorney,” who in this instance acted as counsel for defendant, and to whom, therefore, we shall refer indiscriminately as defendant’s attorney and the insurance carrier’s claims attorney.