Exchange Casualty and Surety Co. v. Scott

• Decision Date: 26 April 1961
• Citation: 12 Cal.Rptr. 790
• Parties: EXCHANGE CASUALTY AND SURETY CO., a corporation, Plaintiff, v. James L. SCOTT et al., Defendants. Harold Lee GARMON, Cross-Complainant and Respondent, v. James L. SCOTT et al., Cross-Defendants; O. N. Sebastian and Standard Accident Insurance Company, a corporation, Appellants. Civ. 24715.
• Court: California Court of Appeals Court of Appeals

Page 790

12 Cal.Rptr. 790

EXCHANGE CASUALTY AND SURETY CO., a corporation, Plaintiff, v. James L. SCOTT et al., Defendants.

Harold Lee GARMON, Cross-Complainant and Respondent, v. James L. SCOTT et al., Cross-Defendants;

O. N. Sebastian and Standard Accident Insurance Company, a corporation, Appellants.

Civ. 24715.

District Court of Appeal, Second District, Division 3, California.

April 26, 1961.

Hearing Granted June 21, 1961.

Opinion vacated 15 Cal.Rptr. 897.

Gilbert, Thompson & Kelly, Los Angeles, and Jean Wunderlich, North Hollywood, for appellants.

Sanford I. Carter and Gerson Marks, Beverly Hills, for respondent.

FORD, Justice.

Exchange Casualty and Surety Co., a corporation, hereinafter designated as Exchange, brought an action in which a declaratory judgment was sought as to its obligations under a policy of automobile insurance issued by it in which the defendant James L. Scott was named as the person insured. The controversy arose out of the fact that Scott, while driving an automobile owned by the defendant O. N. Sebastian, caused the defendant Harold Lee Garmon to suffer certain personal injuries. Garmon and Sebastian each filed an answer. Garmon also filed a cross- complaint in which Exchange, Scott, Sebastian and Standard Accident Insurance Company, a corporation, hereinafter designated as Standard, were named as cross-defendants. Exchange and Standard answered the cross-complaint.

Upon the trial of the matter, the court made findings of fact which may be summarized as follows: 1. On or about April 5, 1957, Exchange issued to Scott a liability insurance policy covering the operation of a 1949 Pontiac automobile. 2. On or about November 5, 1956, Standard issued to Sebastian a liability insurance policy covering the operation of a 1956 Chrysler automobile. 3. Both policies were in effect on April 11, 1957. 4. Garmon and Scott were employees of the Quick Way Car Wash in Inglewood, California, on April 11, 1957. 5. On the date last mentioned, Sebastian drove his Chrysler automobile to the place of business of Quick Way for the purpose of having it washed. 6. He left his car and departed on other business, being away about a half hour. 7. Scott entered the Chrysler automobile, after it had been washed, for the purpose of moving it away from the end of the wash rack; he backed it into the rear end of a Lincoln automobile upon which Garmon was working in a polishing shed; the Lincoln automobile was thrust forward and pinned Garmon against a wall, causing serious personal injuries to Garmon. 8. On July 15, 1957, Garmon filed an action against Scott and Sebastian, his claim against Sebastian being based upon the provisions of section 402 of the Vehicle Code as it then existed. ¹ 9. On January 30, 1959, judgment was entered in that action in favor of the plaintiff Garmon as against the defendant Scott for $17,500 as damages, together with costs, but in favor of defendant Sebastian as against the plaintiff Garmon; an appeal by the plaintiff from the judgment in favor of Sebastian was pending in the District Court of Appeal ² at the time of the making of findings of fact in the present case. 10. The policy issued by Standard provides that an 'additional insured' thereunder is a person who drives the automobile of the named insured with the latter's permission. 11. At the time and place of the accident, Scott was driving Sebastian's automobile with Sebastian's permission within the meaning of the terms of Standard's policy. ³

The conclusions of law reached by the court as to Standard's liability are in part as follows: 1. The judgment in favor of Sebastian in the case of Garmon v. Sebastian, an appeal from which was pending, 'is not res judicata of any of the issues in the present proceedings.' 2. Scott was driving Sebastian's automobile with Sebastian's permission within the meaning of the terms of Standard's policy. 3. Scott was an 'additional insured' within the meaning of the terms of Standard's policy. 4. Standard is liable to Garmon for the payment of the judgment for $17,500 and costs in his favor. Judgment was entered accordingly. From that judgment Standard and Sebastian prosecute the present appeal.

In affirming the judgment in favor of the defendant Sebastian in the case of Garmon v. Sebastian, after the entry of judgment in the present case, this court said (181 Cal.App.2d 254, at page 260, 5 Cal.Rptr. 101, at page 106): 'Under the evidence in this case the jury was not bound to find that the respondent had reason to anticipate that his car would be moved near the polishing enclosure. The trier of fact was justified in inferring that the only anticipated movement was over the distance from the end of the wash rack to the usual place of parking and that that was the only extent to which the owner consented that his vehicle might be driven by some employee of undetermined identity. What is a substantial deviation from a permitted use is a question of fact under the circumstances of each case. [Citations.] We cannot say that there was not substantial support in the evidence for the implied finding of the jury that the permission given by the respondent did not embrace driving the automobile to a point away from the usual place of paking cars freshly washed but that such permission was limited to such usual movement.' Accordingly, the question here presented is whether the determination in Garmon v. Sebastian that Scott was driving Sebastian's automobile without permission at the time Garmon was injured is in the nature of res judicata in the present case.

'Where two actions involving the same issue are pending at the same time, it is not the final judgment in the first suit, but the first final judgment, although it may be rendered in the second suit, that renders the issue res judicata in the other court. * * * Where the judgment in one suit becomes final through lapse of time or affirmance on appeal while an appeal is still pending in another court from judgment in the other action, the first final judgment may be brought to the attention of the court in which an appeal is still pending and relied on as res judicata.' Domestic & Foreign Petroleum Co. v. Long, 4 Cal.2d 547, at page 562, 51 P.2d 73, at page 80; see also, Haines v. Pigott, 174 Cal.App.2d 805, 807, 345 P.2d 339; Sewell v. Johnson, 165 Cal. 762, 770-771, 134 P. 704; 3 Witkin, California Procedure, p. 1935. Consequently, if the final determination of the issue of permission in Garmon v. Sebastian is conclusive with respect to the issue of permission as presented in the present case, this court may give recognition to the record of that related case. Cf. Hammell v. Britton, 19 Cal.2d 72, 75, 119 P.2d 333; City of Los Angeles v. Abbott, 217 Cal. 184, 192-193, 17 P.2d 993; Sewell v. Johnson, supra, 165 Cal. 762, 770-771, 134 P. 704; Watson v. Los Altos School Dist., 149 Cal.App.2d 768, 772, 308 P.2d 872; Muller v. Reagh, 148 Cal.App.2d 157, 161, 306 P.2d 593; Christiana v. Rose, 100 Cal.App.2d 46, 52-53, 222 P.2d 891.

The scope of the doctrine of res judicata is well established. It is, of course, clear that where the causes of action and the parties are the same, a prior judgment is a complete bar in the second action. While this aspect of the doctrine is not applicable in the present case, there is another phase thereof which is pertinent. In Sutphin v. Speik, 15 Cal.2d 195, at pages 201-202, 99 P.2d 652, at page 655, 101 P.2d 497, the Supreme Court stated: 'Second, where the causes of action are different but the parties are the same, the doctrine applies so as to render conclusive matters which were decided by the first judgment. As this court said in Todhunter v. Smith, 219 Cal. 690, 695, 28 P.2d 916, 918: 'A prior judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.'' See also, Taylor v. Hawkinson, 47 Cal.2d 893, 895-896, 306 P.2d 797. Standard is in the same position as its insured, Sebastian, in the application of such doctrine. Reference is made to the governing law in an annotation in 123 A.L.R. 708, at page 709, as follows: 'Consequently, the cases collected herein support, in general, the proposition...