Collard v. Universal Automobile Ins. Co., 6113
Citation | 55 Idaho 560,45 P.2d 288 |
Decision Date | 07 May 1935 |
Docket Number | 6113 |
Parties | IRVING R. COLLARD, Respondent, v. UNIVERSAL AUTOMOBILE INSURANCE COMPANY, Appellant |
Court | United States State Supreme Court of Idaho |
INSURANCE-AUTOMOBILE LIABILITY-PROVISIONS OF POLICY GIVING INJURED PARTIES CAUSE OF ACTION AGAINST INSURER-JUDGMENT FOR INSURER IN ACTION BY INSURED-RIGHTS OF INJURED PARTY-RES JUDICATA-PLEA OF ABATEMENT-CHANGE OF OWNERSHIP-WAIVER OF POLICY PROVISIONS-ACTS OF AGENT.
1. Provision of automobile liability policy giving injured person cause of action against insurer for recovery of judgment against insured creates primary liability against insurer in favor of injured person, of which insured cannot by any act of his divest injured person.
2. Judgment for insurer, in action on automobile liability policy brought by driver of automobile, was not res judicata as to rights of injured person who had secured judgment against driver and who was not party of record in action.
3. Judgment, to be conclusive in another action, must be rendered in action between same parties or between those in privity with parties to former action.
4. Generally, person not party to pending suit, in order that such suit constitute res judicata as to him, must appear openly in case to knowledge of adverse party and it is not sufficient to bind him that he merely advised or aided in trial, gave evidence, contributed to expense or otherwise aided therein in such respects.
5. Judgment for insurer, in action on automobile liability policy brought by driver of automobile involved in accident was not res judicata as to injured person who was not party of record, because of his appearance as witness, some consultation among his attorneys and those of driver, some contribution in expense of appeal, and assistance in preparation of briefs.
6. Rights of person not a party to suit, nor in privity with party, are not affected by judgment rendered therein.
7. Plea of res judicata is an affirmative defense, and burden rests on party asserting it to establish all of essential elements thereof by preponderance of evidence.
8. To successfully maintain plea of res judicata, it must appear that precise question was raised and determined in former suit.
9. Refusal to permit plea in abatement on ground of former adjudication to be heard by court without jury held not error (I. C. A., sec. 7-106).
10. Insurance company may waive any provision in policy for its protection by acts or conduct of its agents, within scope of their authority, and be estopped from availing itself of violation of terms of policy, notwithstanding clauses in policy that company shall not be bound by any such conduct or representations of its agents.
11. Insurance company may elect, through agent, to continue insurance with new owner, although policy provides it should be void for change of ownership.
12. Generally, especially in view of statute providing for writing of insurance only through resident licensed agents agent of foreign insurance company who has power to solicit and take applications, collect premiums, and countersign and deliver policies may bind his principal by oral contract of insurance, or may waive policy requirement of written consent of company to assignment of policy, and company is estopped from denying authority to make such waiver, especially when such consent is wholly due to acts of agent and not of insured (I. C. A., secs. 40-901, 40-902).
13. General agent of insurer who signed and delivered policies received accident reports, accepted policies for cancelation, canceled policies, and made premium refunds, had authority to waive provision avoiding automobile liability policy for change of ownership of automobile (I. C. A., secs. 40-901, 40-902).
14. Where conditional buyer and seller of automobile went to general agent of insurer to transfer automobile liability policy, explained that sale would be completed on following Monday, and agent told them to bring in policy when deal was completed and that policy would be in force in interval, insurer waived provision avoiding policy for change of ownership, and policy was continued in force under changed conditions.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, District Judge.
Action for recovery of judgment under insurance policy. Judgment for respondent. Affirmed.
Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.
Martin & Martin, for Appellant.
Not every agent of an insurance company has power to waive a provision of the policy, but only those who are authorized to conclude contracts of insurance without first referring the negotiations to the company to fix rates of premiums, to consent to changes and to make indorsements upon, and to cancel, policies. (Sharman v. Continental Ins. Co., 167 Cal. 117, 138 P. 708, 52 L. R. A., N. S., 670; Kugler v. Industrial Acc. Com., 63 Cal.App. 308, 218 P. 472; Porter v. General Acc. F. & L. Assur. Corp., 30 Cal.App. 198, 157 P. 825.)
The rule of res judicata applies as well to facts settled and adjudicated as to causes of action. When a matter is once adjudicated, it is conclusively determined between the same parties and their privies as to all matters which were or might have been litigated; and this determination is binding, as to an estoppel, in all other actions, whether commenced before or after the action in which the adjudication was made. (Marshall v. Wichita & M. V. R. Co., 96 Kan. 470, 152 P. 634; Chicago, K. & W. R. Co. v. Commissioners of Anderson Co., 47 Kan. 766, 767, 29 P. 96.)
Carl A. Burke, E. B. Smith, J. W. Galloway and Willis C. Moffatt, for Respondent.
An insurance company may waive any provision in a policy for its protection by acts or conduct of its agents and thereby be estopped from availing itself of a violation of the terms of the policy, notwithstanding clauses in the policy to the effect that the company shall not be bound by any such conduct or representations of its agents. (Allen v. Phoenix Assur. Co., 14 Idaho 728, 95 P. 829; Carroll v. Hartford Fire Ins. Co., 28 Idaho 446, 154 P. 985; Mull v. United States F. & G. Co., 35 Idaho 393, 206 P. 1048.)
A resident agent, appointed by a foreign insurance company under I. C. A., chap. 9, title 40, is a general agent of such company for all purposes in connection with policies written by him. (I. C. A., secs. 40-901, 40-902; Sheets v. Iowa State Ins. Co., 153 Mo.App. 620, 135 S.W. 80.)
In order to make a judgment obtained in one action conclusive in another action, it must be shown by extrinsic evidence that the precise question was raised and determined in the former action. (Mason v. Ruby, 35 Idaho 157, 204 P. 1071; Rogers v. Rogers, 42 Idaho 158, 243 P. 655; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105.)
The record discloses substantially the following facts: On February 8, 1930, William P. Gilderoy was the owner of a Chrysler automobile and secured a policy of insurance from appellant thereon, insuring him against public liability. On May 23, 1930, while the policy was in full force and effect, Gilderoy sold the automobile to D. N. Peterson, under a conditional sales contract. As part of the transaction, Peterson delivered his check in the sum of $ 100 to Gilderoy, and, it appears that in the event the check was not honored on Monday, the 26th, the day it was to be presented to the bank on which drawn, or, in the event that the Commercial Credit Company refused to finance or purchase the conditional sales contract as the parties contemplated, Peterson was to return the automobile. The check was paid and the conditional sales contract was purchased by the Commercial Credit Company. Peterson took possession of the automobile on the twenty-third day of May immediately after the preliminary negotiations. In the morning of the following day, Saturday, May 24th, Peterson went to Gilderoy's place of business to inquire about the insurance on the car. Gilderoy and Peterson then went to the office of Joseph T. Gallagher, local agent of appellant, at which time Peterson told Gallagher, "that I wanted that the insurance be transferred before I made a trip to Boise which I wanted to make"; and informed Gallagher of the agreement with relation to the purchase of the car, the contract, and of the transaction generally that he had made with Gilderoy, and further that the deal would be concluded on the following Monday. Gilderoy testified that he accompanied Peterson to Gallagher's office, at which time the following conversation was had with Gallagher:
. . . .
It is clear from the testimony of Peterson that he went to Gallagher's office, and after telling Gallagher he had made the deal with...
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