Gooschin v. Mercer Cas. Co.

• Decision Date: 02 July 1934
• Docket Number: 25140.
• Citation: 34 P.2d 435,178 Wash. 114
• Parties: GOOSCHIN v. MERCER CASUALTY CO. et al.
• Court: Washington Supreme Court

34 P.2d 435

178 Wash. 114

GOOSCHIN v. MERCER CASUALTY CO. et al.

No. 25140.

Supreme Court of Washington

July 2, 1934

Department 2.

Appeal from Superior Court, King County; William G. Long, Judge.

Action by Nich Gooschin against Andrew B. J. Ladd and Mercer Casualty Company, garnishee. From an adverse judgment, the garnishee appeals.

Affirmed.

Shank Belt & Rode, of Seattle, for appellant.

Kahin &amp Carmody, of Seattle, for respondent.

HOLCOMB Justice.

This appeal is from a judgment against appellant in a garnishment proceeding.

On February 18, 1933, respondent secured a judgment against defendant Andrew B. J. Ladd in the sum of $22,575.95 in an action to recover damages sustained in an automobile accident. On the same day that the above judgment was entered, respondent sued out a writ of garnishment directed to appellant. Subsequently, the defendant in the main action appealed from that judgment, which appeal was pending at the time the garnishment herein was issued and at the time it was heard in the court below. The defendant in the main action filed no supersedeas bond upon appeal. Appellant answered in the garnishment proceeding that it had no funds belonging to the defendant in the principal action which answer was controverted by respondent, and this matter proceeded to trial in the court below Before the court without a jury.

At the time of the accident there was in full force and effect an insurance policy issued by appellant to the principal defendant where, among other things, appellant had insured him to the maximum extent of $10,000 'against loss and expense by reason of liability imposed by law upon assured' arising out of such an accident as was the foundation of the judgment in the principal case. This policy further provided that the assured should aid in prosecuting appeals; should not voluntarily assume any liability or interfere in any legal proceedings or settle any claims, except at his own cost, without the written consent of the insurer previously given; and also providing: '* * * nor shall any action to recover for any loss covered by this policy arising or resulting from claims upon the assured for damages be sustainable unless it shall be brought by the assured for loss actually sustained by him after actual trial of the issue.' There is a further provision in the policy authorizing a direct action upon the policy by any claimant against the assured in case of bankruptcy or insolvency of the assured after execution of the assured was returned unsatisfied.

In general, the provisions of this policy are very similar to those Before us in Johnson v. McGilchrist, 174 Wash. 178, 24 P.2d 607, and this, also, as in that contract, often refers to 'liability' under the policy.

At the trial of this proceeding appellant moved for a continuance until the appeal then pending in the main action could be determined in this court, which continuance was denied.

After a trial of the case, the trial court rendered a memorandum decision holding that the policy is a liability,...