Consolidated Freightways v. Moore
| Decision Date | 12 April 1951 |
| Docket Number | No. 31631,31631 |
| Citation | 38 Wn.2d 427,229 P.2d 882 |
| Court | Washington Supreme Court |
| Parties | CONSOLIDATED FRELIGHTWAYS, Ine. v. MOORE. |
Cashatt & Turner and Graves, Kizer & Graves, all of Spokane, for appellant.
Hamblen, Gilbert & Brooke, Spokane, for respondent.
On June 16, 1948, the plaintiff and defendant entered into an Equipment Trip Lease Agreement, by which the defendant leased a truck to the plaintiff for a trip from Portland to Seattle and return, on a mileage basis. The defendant drove his own truck and was paid for his services separately from the truck hire.
Among other things, the lease provided: 'It is further mutually understood and agreed between these parties that if Lessor does not expressly authorize Consolidated to use its own regularly employed driver or drivers for the operation of said equipment during the period of this lease, but instead Lessor confines his approval as to a driver or drivers to a person or persons not now regularly employed by Consolidated (including Lessor himself), then, in such event, Lessor agrees to indemnify and save Consolidated harmless in case of any and all injury or damage to persons or property (including damage to the equipment leased hereunder or loss or damage to cargo carried thereon) resulting from the operation of the said equipment during the period of this lease, and Lessor hereby warrants that the following described insurance policies are presently in full force and effect and that in the event of any injury to persons or loss or damage to property occurring while said equipment is being operated by a person or persons expressly approved herein by Lessor, then Lessor shall apply the proceeds of such insurance to the payment of any and all claims arising from any such injury, loss or damage, whether such claims be made against Lessor or Consolidated, severally or jointly.' (Italics ours.)
This indemnity provision came into effect by the act of defendant in driving his own equipment. While on the return trip, he collided with the vehicle of one Lundberg. Lundberg recovered a judgment for personal injuries and property damages against the plaintiff and defendant, jointly and severally, in the sum of $2,721.50 and costs.
While both parties were qualified public carriers with public liability coverage as required by law, the judgment was paid by the plaintiff with money provided for that purpose from its insurance company, Truck Insurance Exchange, for which it gave a 'loan receipt.' This provided that plaintiff would, if requested so to do, prosecute a claim against the defendant, and that the amount loaned would be repayable to the extent of any money recovered thereby.
This action, on the indemnity agreement, followed and plaintiff was given judgment as prayed. The defendant appeals.
Appellant's contentions are based on questions of both fact and law. He contends he was an employee rather than an independent contractor as found by the court. This fact, he says, fixes the primary liability for the third party injury on the respondent under the doctrine of respondeat superior. On this factual basis he then seeks to invoke the rule laid down in Builders & Mf'rs Mut. Casualty Co. v. Preferred Automobile Ins. Co., 6 Cir., 118 F.2d 118, 121, viz.: '* * * The rule that an insurer who has paid the loss resulting from a peril insured against may be subrogated to all the claims which the insured may have against any person by whose negligence the injury was caused does not apply in a case where the injury was caused by the negligence of the insured himself.'
Obviously, the reason for the rule is that, where an innocent third party is injured because of the negligence of an insured or his employee, the insured would not have a cause of action against him. In such a case there is nothing to which the insurer can be subrogated.
The appellant contends that upon our finding him to be an employee, his negligence becomes the negligence of the respondent. The...
To continue reading
Request your trial
-
Mahler v. Szucs
...that a party has a cause of action notwithstanding the payment of his loss by an insurance company." Consolidated Freightways v. Moore, 38 Wash.2d 427, 430, 229 P.2d 882 (1951); Ciminski v. SCI Corp., 90 Wash.2d 802, 585 P.2d 1182 (1978). The Legislature has abolished the collateral source ......
-
Matsyuk v. State Farm Fire & Cas. Co.
...the payment of his loss by an insurance company.'" Mahler, 135 Wash.2d at 412 n. 4, 957 P.2d 632 (quoting Consol. Freightways v. Moore, 38 Wash.2d 427, 430, 229 P.2d 882 (1951)). A collateral source is a source independent of one of the tortfeasors. Mazon v. Krafchick, 126 Wash.App. 207, 22......
-
Cudd v. Great American Insurance Company, Civ. A. No. 8038.
...pursuant to a contractual obligation as to which the defendant tortfeasor had no interest. In accord is Consolidated Freightways v. Moore, 38 Wash.2d 427, 229 P.2d 882 (1951). Likewise, credits have been denied for payments made pursuant to medical payments clauses in liability policies eve......
-
Royal Zenith Corp. v. Citizens Publications, Inc.
...476 (dictum) (conditional sale); Commercial Union Fire Ins. Co. v. Kelly, 389 P.2d 641 (Okl.) (lessor-lessee); Consolidated Freightways v. Moore, 38 Wash.2d 427, 229 P.2d 882 (lessor-lessee). Allowing third party the benefit of the insured's insurance: Brady v. Welsh, 200 Iowa 44, 204 N.W. ......