Eakle v. Hayes

• Court: Washington Supreme Court
• Writing for the Court: [185 Wash. 521] STEINERT, Justice.
• Citation: Eakle v. Hayes, 185 Wash. 520, 55 P.2d 1072 (Wash. 1936)
• Decision Date: 31 March 1936
• Docket Number: 25617.
• Parties: EAKLE v. HAYES et al.

55 P.2d 1072

185 Wash. 520

EAKLE v. HAYES et al.

No. 25617.

Supreme Court of Washington, En Banc.

March 31, 1936

As Amended April 1, 1936.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by Kenny Eakle against Donald M. Hayes and another defendants, and the Hartford Accident and Indemnity Company a corporation, garnishee. From judgment dismissing writ of garnishment, plaintiff appeals.

Affirmed.

L. C Stevenson, of Seattle, for appellant.

Roberts & Skeel and W. R. McKelvy, all of Seattle, for respondents. Shank, Belt, Rode & Cook, of Seattle, amicus curiae.

STEINERT, Justice.

This appeal presents a garnishment proceeding, based on a judgment previously obtained by plaintiff in the action against the principal defendants, for damages to plaintiff's automobile. On the issues framed in the garnishment proceeding, a hearing was had, pursuant to which the court made findings of fact from which it was concluded that plaintiff was not entitled to recover from the garnishee defendant. From a judgment dismissing the writ of garnishment, plaintiff appealed.

The facts material to the controversy are these: On February 5 1932, appellant's automobile collided with an automobile driven by defendant Donald M. Hayes. In December of that year, appellant commenced the original action herein against the principal defendants, Hayes and wife, to recover for the resultant damages. Defendants answered and cross-complained for damages to their automobile.

At the time of the accident, there was in full force and effect a combination automobile insurance policy which had been issued by respondent, Hartford Accident & Indemnity Company, to Mr Hayes. By the terms of the policy, respondent assumed the respective obligations of the insured, as defined and limited in the instrument. The policy further obligated respondent, among other things, (1) to defend, in the name and on behalf of the insured, any suit alleging property damage to which the insurance provided in the policy was applicable; and (2) to pay, within the limits of the policy, any loss or liability imposed by law upon the insured for property damage, and also to pay all costs taxed against the insured in any suit defended by the company, and all interest accruing upon any judgment. The policy further provided that if any person obtained final judgment against the insured, and the judgment was not satisfied within thirty days after its rendition, then such person might proceed to recover the amount of the judgment from the insurer.

The agreement of insurance, however, was specifically made subject to a number of conditions. One of the conditions required the insured to co-operate fully with the insurer in the disclosure of all known facts pertaining to any accident or any claim or suit arising thereon, and to render his aid in the securing of evidence, the attendance of witnesses at any trial or hearing, and in the prosecution of any appeal.

In November, 1933, the cause was set for trial to be heard March 27, 1934. Respondent, through its attorneys, who had appeared for the defendants Hayes, promptly endeavored to locate Mr. Hayes at his residence in Seattle, but was unable to find him. His wife and his brother, when interviewed, professed not to know where Hayes was, and letters directed to him at his last known address in Seattle, advising him of the trial and of the necessity of his being present thereat, went unanswered. Respondent finally obtained information from another party that Hayes had left Seattle some months Before and had gone east. Through corespondence with a marine service bureau and a steamship company, respondent learned that Hayes had been seen in Charleston, Mass., on February 7, 1934, but it was unable to trace him beyond that time or place. Upon these facts, respondent's counsel based its application for, and obtained, a continuance of the trial to April 30, 1934. Respondent then extended its search for Hayes, but was unable to locate him. On April 26, 1934, respondent's attorneys wrote to appellant's attorney advising him that Hayes had violated the provisions of the policy, to the prejudice of the respondent, and that it would, therefore, continue the defense of the action only with full reservation of all its rights because of such violation, and that in the event that a judgment was obtained against Hayes, it would disclaim all liability under the policy and would refuse to pay the judgment.

When the cause came on for trial, respondent, through its counsel, in open court reiterated its position. The trial then proceeded, with Mrs. Hayes present thereat and testifying for defendants. Mr. Hayes did not attend, nor could his testimony be procured. The trial resulted in a verdict and judgment for appellant against the defendants Hayes. Upon respondent's refusal to pay the judgment, garnishment proceedings were in due time instituted against it, with the result already stated.

The status of the appellant in this case is that of a garnishing creditor. It is a well-settled rule in this state that the rights of a garnishing creditor are no greater than those of the debtor, and, if the debtor cannot recover against the garnishee, then the garnishing creditor cannot. Barkley v. Kerfoot, 77 Wash. 556, 137 P. 1046; Austin v. Wallace, 117 Wash. 61, 200 P. 566; Parks v. Lepley, 160 Wash. 287, 294 P. 1020; Koontz v. General Casualty Co., 162 Wash. 77, 81, 297 P. 1081; McCann v. Reeder, 178 Wash. 126, 34 P.2d 461. Hence, if Hayes, the insured under the policy, could not have recovered against the respondent insurance company, then the appellant cannot.

The respondent's agreement to assume liability for loss in the event of accident was expressly conditioned upon full co-operation by the insured, Hayes, in the disclosure of all facts known by him pertaining to the happening of the accident, and the rendition by him of aid in the securing of evidence, the attendance of witnesses at the trial, and the prosecution of any appeal. According to the complaint, Hayes was the principal actor in the main case, the party against whom negligence was charged. He, in turn, was the principal cross-complainant, charging negligence against the appellant. He was a party to the action, and, under the issues raised by him in his answer and cross-complaint, he was a necessary and vital witness. His failure to attend the trial and there disclose the facts known to him regarding the accident was a breach of his contract of insurance and therefore barred any recovery on the policy by him.

In Koontz v. General...