Fitzgerald v. Quinn

STURTEVANT, J.

On December 23, 1929, a truck owned by the defendant Heatley and a truck owned by one Sigmond Eckstein collided at Gough and Broadway in San Francisco. Charles Fitzgerald, now deceased, was the employee of Eckstein and the latter was insured by the Indemnity Insurance Company. John Quinn was the employee of the defendant Heatley and was operating the truck owned by the latter. As a result of the collision Fitzgerald was injured, he was taken to the hospital, where he lingered for some time and then died. Before his death he was treated at the hospital and the expenses were paid by the insurance carrier and the latter also paid to him disability indemnity charges. After his death-the insurance carrier also paid to the surviving mother of the deceased the amount of the death benefit. Thereafter the plaintiff, as the heir of the deceased, commenced the action, appearing as the first one in the title, against Heatley, the owner of the other truck,

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and John Quinn, the driver. Later Indemnity Insurance Company also commenced an action to recover its damages. The two actions were consolidated and tried together. The jury returned a verdict in favor of the mother in the sum of $5,000, and in favor of the Indemnity Insurance Company in the sum of $4,455.28. From the judgment the defendants have appealed under section 953a of the Code of Civil Procedure.

The defendants state eleven questions intimating error. They print as an appendix about twenty-four folios of the record. They attack six instructions which are set forth in the briefs, but they do not print any others nor give any references thereto. It has been stated frequently that a court of review will not undertake to search a record on appeal for the purpose of finding material to reverse the judgment appealed from. In what follows, this court will attempt not to depart from that well-settled rule.

1. The defendants claim the court erred in admitting evidence of payments of compensation insurance to the decedent. We think not, because the statute provides that the insurance carrier is subrogated to the rights of the employer and may enforce such rights in its own name. (Sec. 30, subd. [f].) And, as to the employer the statute provides: “Sec. 26 ... If the suit be prosecuted by the employer alone, evidence of any expenditure which the employer has paid or become obligated to pay by reason of said injury or death shall be admissible, and such expenditures shall be deemed a part of the damages, ...” (Stats. 1927, p. 1213.) The fact that on the trial another action was being tried at the same time did not give support to the contention. That fact merely called forth proper rulings as to the applicability of the evidence. It did not create a question as to the admissibility of it. (10 Cal. Jur. 816.)