Bosch v. Standard Oil Co.

• Decision Date: 28 June 1961
• Citation: 193 Cal.App.2d 426,14 Cal.Rptr. 247
• Court: California Court of Appeals Court of Appeals
• Parties: Harry C. BOSCH, Plaintiff and Appellant, v. STANDARD OIL CO., et al., Defendants, Argonaut Insurance Exchange, Plaintiff in Intervention and Respondent. Civ. 19305.

Page 247

14 Cal.Rptr. 247

193 Cal.App.2d 426

Harry C. BOSCH, Plaintiff and Appellant, v. STANDARD OIL CO., et al., Defendants, Argonaut Insurance Exchange, Plaintiff in Intervention and Respondent.

Civ. 19305.

District Court of Appeal, First District, Division 1, California.

June 28, 1961.

Rehearing Denied July 19, 1961.

Hearing Denied Aug. 23, 1961.

DeMeo & DeMeo, Santa Rosa, Fitz-Gerald Ames, Sr., San Francisco, for appellant.

Partridge, O'Connell, Partridge & Fall, San Francisco, for respondent.

DUNIWAY, Justice.

Plaintiff and his attorneys appeal from an order made after final judgment. The order denied a motion, made by the attorneys alone, for an order awarding them attorneys' fees and a pro rata share of their out-of-pocket expenditures, to be paid from the portion of a judgment recovered in this action by intervenor, Argonaut Insurance Exchange. No question is raised by respondent Argonaut as to the standing of the attorneys to make the motion or as to the appealability of the resulting order. We therefore do not consider these matters, but decide the appeal on the merits.

The facts are as follows: Plaintiff Bosch was an employee of one Arthur B. Siri, Inc., and was seriously injured in the course of his employment. Argonaut was Siri's compensation carrier, and paid out, for medical care and other benefits under the Workmen's Compensation Act, $9,079.18. Thereafter, plaintiff filed this action, naming as defendants Standard Oil Company of California, James Alfred Vadon and R. A. Pellegrini. Argonaut intervened, seeking to recover the moneys paid out by it. After a trial lasting about four weeks, judgment was rendered upon a jury verdict awarding plaintiff $116,741.67 and Argonaut $9,079.18. Later, plaintiff agreed to settle for $110,000, payable $100,920.82 to plaintiff and $9,079.18 to Argonaut.

The motion was heard upon affidavits and oral testimony. We must assume, to the extent that there is any conflict in the evidence, that the court accepted the portions favorable to respondent. Quisenberry v. Rulison, 129 Cal.App.2d 268, 277 P.2d 57. The following is therefore taken from the affidavit of Mr. Partridge, one of respondent's counsel.

1. The accident occurred August 25, 1955, and was first reported to Argonaut on August 26, 1955.

2. On August 31, 1955, the office of DeMeo & DeMeo contacted adjusters for Argonaut requesting their assistance in developing the facts involved.

3. On September 20, 1955, the entire subrogation file, then possessed by Argonaut was forwarded to Argonaut's attorneys, and on the same date Argonaut wrote to DeMeo & DeMeo, advised them of that fact and further informed them of Argonaut's intention to prosecute its own claim.

4. On September 27, 1955, DeMeo & DeMeo wrote to Argonaut stating, 'we would prefer that the subrogation aspect of this case be handled independently by your own attorneys and we will likewise undertake to prosecute Mr. Bosch's claim for general damages and for special damages not covered by workmen's compensation.'

5. On September 29, 1955, Partridge advised DeMeo & DeMeo that the file was in his office and on the same day Partridge asserted by letter claims on behalf of Argonaut against defendants, R. A. Pellegrini and James Alfred Vadon.

6. On October 5, 1955, DeMeo & DeMeo Meo advised Partridge of their preference that a complaint in intervention be filed on behalf of Argonaut.

7. DeMeo & DeMeo was granted consent by Argonaut to have Argonaut's adjusters, Reed and Corippo, make available all investigative information to DeMeo & DeMeo and cooperate with DeMeo & DeMeo in preparing further investigation. All medical reports were at various intervals forwarded to DeMeo & DeMeo and later to Mr. Fitz-Gerald Ames, Sr., for their use in preparing the case.

8. On April 27, 1956, counsel for Argonaut were advised of the association of Mr. Fitz-Gerald Ames, Sr.

10. Pre-trial conference was attended by representatives of Partridge's office who provided the court and parties with the necessary information and at that time sought stipulations with reference to the extent of expenditures made by Argonaut and all other necessary proof relating to the position and responsibility of Argonaut. Settlement negotiations were actively discussed by Partridge and other representatives of his office and on June 23, 1958, photostats of all bills paid by Argonaut were forwarded to Mr. Fitz-Gerald Ames, Sr., at the expense of Argonaut.

11. On the first day of trial, Partridge and Mr. Giordano of his office were present in court and at that time obtained stipulations from each of the defendants as to all proof necessary to show the position of Argonaut in the case and to show all of the expenditures made by that concern pursuant to its liability under the Workmen's Compensation Act. Partridge and Mr. Giordano attended the first morning of trial, including voir dire examination of jurors, and an opening statement was made to the jury in the form of a stipulation entered into with defendants, explaining in full the position of Argonaut in the case and the nature and extent of its claim against the defendants. At that time Partridge was excused by the court from further attendance at the trial.

12. In preparation of the case for trial and during the trial, Mr. Fitz-Gerald Ames, Sr., called upon the services of Partridge and Mr. Giordano of his office on various occasions and these services were freely given with the end in view of presenting necessary evidence before the court. On September 10, 1958, Partridge was requested by Mr. Fitz-Gerald Ames, Sr., to obtain certain X rays of Mr. Bosch and present them in court. On September 10th and 11th, Mr. Giordano and Partridge spent approximately two full days of time in contacting the various doctors involved and in seeking to locate the X rays, and subpoenas were prepared and directed to Dr. Earl E....