Chase v. Southern Pacific Co.

YORK, J. On July 28, 1928, plaintiff and respondent filed complaint for damages for personal injuries against the defendant Southern Pacific Company. On November 16, 1928, defendant having theretofore answered, the Pacific Indemnity Company, appellant herein, filed an application in the action for a lien against any judgment, which respondent might recover, for sums already paid and expended and to be paid. and expended by appellant to and for the benefit of respondent, pursuant to provisions of section 26 of the “Workmen’s Compensation, Insurance and Safety Act”. Respondent at the time of his injury was employed by The Pioneer Paper Co., and appellant was the insurance carrier of respondent’s employer. The action was tried in March, 1929, and judgment was entered in favor of respondent. Thereafter, on motion for new trial made by Southern Pacific Company, the said motion was denied on condition that respondent consent to a reduction of the judgment. Consent was given and the judgment was reduced.

During the trial of the action, appellant’s application for a lien was offered in evidence, and respondent offered evidence of loss of time, past and future, as well as evidence of special damages. The amount of the application for lien at the time of the trial was less than the total finally claimed, although the application recited that sums were to be paid and expended in the future, and appellant actually continued to pay and expend money to and for the benefit of respondent until April 15, 1929.

The judgment was appealed from by the Southern Pacific Company, and on February 24, 1932, the remittitur was received in the trial court affirming the judgment. On February 29, 1932, upon an ex parte application and order, appellant was allowed a lien against the judgment in the amount of $856.03, being the full amount expended by appellant, pursuant to section 26 of the Workmen’s Compensation, Insurance and Safety Act. On March 5, 1932, another department of the superior court ordered the Southern Pacific Company to pay to the clerk of the court the full amount of such judgment, and ordered the clerk to enter a satisfaction thereof. On March 29th, the court ordered the clerk to hold the sum of $856.03 for a period of three weeks pending a determination of the rights of [275]appellant. Thereafter another order and stipulation were entered into, the effect of which was that the clerk should hold said sum of $856.03 pending the determination by the court of a motion made by appellant that its lien be allowed. The motion subsequently was heard and on July 30, 1932, it was denied. This appeal is from the order denying said motion.