Corridan v. Rose, Zurich General Acc. & Liability Ins. Co., Intervenor
| Decision Date | 06 December 1955 |
| Citation | 137 Cal.App.2d 524,290 P.2d 939 |
| Court | California Court of Appeals Court of Appeals |
| Parties | William CORRIDAN, Jr., a minor, by William Corridan, Sr., his guardian ad litem, and William Corridan, Sr., Plaintiffs and Respondents, v. A. G. ROSE, Jr., A. G. Rose, Sr., First Doe, Second Doe and Third Doe, Defendants and Respondents. Zurich General Accident and Liability Insurance Company, Ltd., a corporation, Intervenor and Appellant. Civ. 16440. |
Bronson, Bronson & McKinnon, San Francisco, for appellant.
Robert E. Hayes, Santa Clara, for respondent A. G. Rose, Jr.
James F. Boccardo, San Jose, Edward J. Niland, San Jose, of counsel, for respondents Corridan, Sr., and Corridan, Jr.
In this negligence action instituted by the minor William Corridan, Jr. and his father William Corridan, Sr. against the minor's uncle A. G. Rose, Jr., who drove a tractor, which hit and seriously injured the minor, and the minor's grandfather A. G. Rose, Sr. allegedly co-owner of the tractor with his son A. G. Rose, Jr. who allegedly was driving it as his father's agent, Zurich General Accident and Liability Insurance Company hereinafter called Zurich, who had issued a policy of liability insurance to Rose, Sr. (which would also cover his employee in driving a tractor) was permitted to intervene and to defend on behalf of Rose, Jr. and Rose, Sr., Zurich having alleged that such was necessary to prevent lack of defense and collusion. The verdict was for plaintiff against both Rose, Jr. and Rose, Sr. Zurich appeals from an order granting a new trial at the motion of defendant Rose, Jr. only.
At the time of the accident Rose, Sr. owned a ranch on Sutherland Avenue in Santa Clara County on which he lived himself and in separate houses his married son Rose, Jr., then age 24, and his daughter Mrs. Corridan with her son, the minor plaintiff Billy. The Roses, father and son, had always been in ranching operations together. Rose, Jr. also farmed for himself a separate piece of land. The tractor was kept in a barn on the ranch and was used mainly by Rose, Jr. in operating the ranch and also for outside work.
On the evening of May 26, 1951 Rose, Jr. was driving the tractor home from a nearby ranch on which he had worked with it for hire. When he was driving on the edge of Sutherland Avenue, Billy was riding his bicycle on the paved part of the road alongside the tractor. Billy fell from the bicycle, and a tractor tread went over his left leg, which had to be amputated below the knee. When thereafter Rose, Jr. in the presence of Rose, Sr. gave information to a representative of Zurich, Rose, Jr. stated in substance that the tractor belonged to him, not to his father, that his father had bought it for him. He used the tractor not only on his father's farm but also on other jobs. When Billy was riding his bicycle alongside the tractor, Billy got a few feet ahead and suddenly turned his wheel and fell directly in front of the tractor. It happened so fast that Rose, Jr. did not know what caused Billy to fall. He was watching him all the time and keeping a good distance.
When the present action was brought against them, both Roses claimed coverage under the Zurich liability policy any tendered Zurich their defense. Zurich denied coverage of Rose, Jr. on the ground that he was not driving the tractor as an employee of his father, but offered to defend him on condition that Rose, Jr. would sign a 'reservation of rights agreement' reserving for both sides the issue of coverage. Rose, Jr. Refused to sign such an agreement and Zurich refused to defend him. For Rose, Sr. Zurich prepared an answer alleging that the tractor involved in the accident belonged to Rose, Jr. and that he was not driving it as an employee or agent of Rose, Sr. Rose, Sr. refused to sign said answer on the ground that it did not state the true facts. Zurich then withdrew from his defense on the ground of collusion and lack of cooperation.
As stated before, Zurich was permitted to intervene on behalf of defendants and it was ordered that its denials and allegations as to the original complaint would stand as answer on behalf of Rose, Sr. and Rose, Jr. The complaint in intervention alleged among other things the intervenor's denial of the coverage of Rose, Jr., the withdrawal from the defense of Rose, Sr. because of collusion and lack of cooperation, and intervenor's interest in the success of defendants because a judgment against them would under section 11580 of the Insurance Code in an action on the policy against intervenor be conclusive with respect to the liability of defendants and the amount of damages, although not as to intervenor's liability on the policy. The necessity of intervention was predicated on the alleged collusion and danger of further collusion in the defense by Rose, Sr. and Rose, Jr. with plaintiffs. A demurrer of Rose, Jr. to he complaint in intervention was overruled. The answers of all other parties to the complaint in intervention deny collusion, and the Roses allege that they owned the tractor together and that at the time of the accident Rose, Jr. had used it at the request of Rose, Sr. Rose, Sr. stated that the untrue allegations as to this point in the draft complaint of Zurich were the reason for his refusal to sign. At the trial objections of Zurich to all evidence with respect to issues formed by said answers to the complaint in intervention were sustained and these issues were not submitted to the jury.
At the beginning of the trial both Rose, Sr., and Rose, Jr., notified Zurich that plaintiff offered to settle for $100,000 (the limit of the coverage in this case), that the offer was reasonable and that they demanded acceptance and payment by Zurich. Zurich refused. At the trial Rose, Jr. testified that when the accident happened he was turning the tractor from the shoulder of the road more into the paved part to avoid certain pear trees, that in watching the trees he did not look out for Billy and that he became aware of him again only when Billy was under the tractor; he did not know what happened to Billy up to that moment. Billy testified that the tractor hit the hind wheel of his bicycle. Rose, Sr. testified that the owner of the farm from which Rose, Jr. was returning when the accident happened had asked Rose, Sr. for assistance in certain farming operations with the tractor, that Rose, Sr. had promised to send his son with it and had arranged for the price. Both he and Rose, Jr. testified that they owned the tractor together. After the accident Rose, Sr. made the large final payment on it and thereafter the bill of sale was made out in their combined names.
After verdicts of $40,000 in behalf of Billy and of $6,000 in behalf of his father all parties moved for a new trial. The motions of Zurich and Rose, Sr. were withdrawn. The motion of plaintiffs was denied, but the motion of Rose, Jr. was granted. The notice of motion of Rose, Jr. stated several grounds but the only one urged was error in permitting Zurich to intervene. No other basis for the granting of the new trial is suggested on appeal. Respondents urge that Zurich was not a party to the order granting a new trial and not a party aggrieved by it and that for these reasons its appeal must be dismissed and that otherwise the order must be affirmed because the admission of Zurich as intervenor was erroneous, also because its participation in the trial injected insurance into the picture and because the litigation of the allegations of the complaint in intervention was excluded from he trial. It may be noted that not only Rose, Jr. but also plaintiffs defend the order, which has set aside the judgment they obtained.
The contention that appellant is not a party to the judgment or not a party aggrieved is on its face without merit. By the order granting leave to intervene it was determined implicitly that intervenor had an interest in the matter in litigation, in the success of the defendants and in the prevention of a judgment for plaintiffs caused by lack of defense or collusion. Under section 387 of the Code of Civil Procedure Zurich by said intervention became a party to the action uniting with the defendants in resisting the claims of plaintiffs and obtained all rights of a party defendant, including the right to...
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