Hartford Accident & Indemnity Co. v. Jasper

• Decision Date: 09 September 1944
• Docket Number: No. 10580.,10580.
• Citation: 144 F.2d 266
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. JASPER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F.2d 266 (1944)

HARTFORD ACCIDENT & INDEMNITY CO. v. JASPER et al.

No. 10580.

Circuit Court of Appeals, Ninth Circuit.

August 3, 1944.

Rehearing Denied September 9, 1944.

James Arthur Powers, of Portland, Or., for appellant.

McCamant, King & Wood, Borden Wood, and Robert S. Miller, all of Portland, Or., for appellees Jasper and Brown.

Before GARRECHT, STEPHENS, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

This is an action for a declaratory judgment.

Briefly, the facts are: The appellant insurance company issued to Harold E. Wells a policy of automobile liability insurance which contained what is known as an "omnibus" provision, which extends the insurance coverage in addition to the named insured Wells to any person using the automobile provided the actual use is with the permission of the named insured. On June 28, 1942, Dake, an employee of the named insured, while driving the insured truck, was involved in a collision, which, resulted in the death of Emmett C. Jasper. One of the appellees is the administrator of his estate. Others were injured and they asserted claims against Wells as owner of the truck and against the appellant insurance company.

The action was tried by the court without a jury. The trial court found that the insured truck in this case was being used with the permission of the named insured.

There are two questions raised on this appeal. The first is whether the judgment in the action of Edward J. Jasper, administrator of the estate of Emmett C. Jasper, deceased, vs. Harold E. Wells and Charles M. Dake, tried in the Circuit Court of Clatsop County, Oregon, is res adjudicata as to the appellee here, the administrator of the said Emmett C. Jasper estate. We find no error in the statement of the trial court that the issues decided in the state court are not determinative of this action; that the appellees are not barred from asserting their defenses here; and that there is no estoppel as against the appellees as a result of the said judgment in the state court action. A matter cannot be res adjudicata unless there be identity of the thing sued for, of the cause of action, of the persons and parties, the quality of the persons for and against whom the claim is made, and the judgment in the former action be so in point as to control the issue in the pending one.

The second question on appeal — whether Dake was driving with the insured's permission or not — is one of fact.

There was considerable conflict in the testimony. The insured testified that the truck was never used without express permission. Dake testified that he used the truck to go hunting and he used the insured's gun also, and that sometimes he had the insured's express permission but very often he did not.

Testimony shows that in order to transport his crew back and forth to work, the insured used this truck and sometimes he drove and sometimes a member of his crew drove the truck; the employees used the truck to haul furniture and wood. Dake testified he used the truck also to...