Devoto v. United Auto Transp. Co., Inc.

• Decision Date: 14 March 1924
• Docket Number: 18280.
• Citation: 223 P. 1050,128 Wash. 604
• Court: Washington Supreme Court
• Parties: DEVOTO v. UNITED AUTO TRANSP. CO., Inc., et al. (two cases. THOMPSON v. SAME.

223 P. 1050

128 Wash. 604

DEVOTO v. UNITED AUTO TRANSP. CO., Inc., et al. (two cases.

THOMPSON v. SAME.

No. 18280.

Supreme Court of Washington

March 14, 1924

Department 1.

Appeal from Superior Court, Pierce County; Card, Judge.

Action by A. L. Devoto, E. J. Thompson, and Leo Devoto, respectively against United Auto Transportation Company, Inc., and another. Judgments for plaintiffs, and defendants appeal. Reversed and remanded.

Van Dyke & Thomas, of Seattle, and F. A. Latcham of Tacoma, for appellants.

Bates &amp Peterson, of Tacoma, for respondents.

TOLMAN J.

These causes all arise out of one accident, and were consolidated and tried as one, resulting in a verdict awarding A. L Devoto $250, Leo Devoto $1,500, and E. J. Thompson $1,000. From a judgment on the verdict, the defendants have appealed.

As we view the questions now to be decided, it is unnecessary to set out the details of the accident out of which the causes of action arose. It will be sufficient, we think, to say that the automobile owned and driven by respondent Thompson, in which the other respondents were riding, was proceeding along the highway from Camp Lewis to Tacoma through a dense fog. The speed at which it was traveling, if actually moving at the moment, the condition of its lights, and the like, were all questions for the jury, which were properly submitted and are not here involved. A stage belonging to the appellant United Auto Transportation Company, Inc., driven by one Roy Shotwell, going in the same direction, overtook and crashed into the rear of the machine occupied by respondents. The appellant Automobile Insurance Exchange, a corporation, was joined as defendant in each case. The appellants alleging in effect that it was engaged in the business of automobile liability insurance, and at the time had on file with the proper department of the state government, and in full force and effect, a bond on which the United Auto Transportation Company was principal, and on which it was the surety, in the sum of $5,000, for the benefit of any person who might sustain injury through the negligent operation of any motor vehicle by the United Auto Transportation Company.

The first assignment of error raises the question of the right of one not a passenger on the stage, but situated as were respondents here, to join the insurance company as a defendant in the action. The statute (section 5, of chapter 111, Laws of 1921) reads:

'The commission shall in the granting of certificates to operate any auto transportation company, for transporting persons, and, or, property, for compensation require the owner or operator to first procure liability and property damage insurance from a company licensed to make liability insurance in the state of Washington or a surety bond of a company licensed to write surety bonds in the state of Washington on each motor propelled vehicle used or to be used in transporting persons, and, or property, for compensation in the amount of not to exceed $5,000.00 for any recovery for personal injury by one person and not less than $10,000.00 and in such additional amount as the commission shall determine, for all persons receiving personal injury by reason of one act of negligence and not to exceed $1,000.00 for damage to property of any person other than the assured, and maintain such liability, and property damage insurance or surety bond in force on each motor propelled vehicle while so used, each policy for liability of property damage insurance or surety bond required herein, shall be filed with the commission and kept in full force and effect and failure so to do shall be cause for the revocation of the certificate.'

It is asserted here that the department has construed this statute as not giving a direct cause of action against the insurer by requiring in all such cases a proviso to be indorsed on each bond or policy to the effect that if a final judgment based on negligence be rendered in a court of last resort against the principal, or the assured, then the insurer agrees that if the judgment be not paid the judgment creditor may commence and prosecute an action against it to recover the amount of such judgment. Whatever may be the custom or rule of the department, the policy here involved bears such a rider, but we do not think that is controlling.

The statute with reference to the transportation of passengers by motor vehicles in cities of the first class (chapter 57, Laws of 1915) carries a direct provision in section 3 of the act to the effect that any person injured by the negligent act of the operator shall have a direct cause of action against both the principal and the surety in the bond there provided for. Hence, it is argued, the act of 1921, containing no such direct provision cannot be so construed; but under the rule...