Hamm v. Camerota

• Decision Date: 01 December 1955
• Docket Number: No. 33244,33244
• Citation: 290 P.2d 713,48 Wn.2d 34
• Court: Washington Supreme Court
• Parties: B. Franklin HAMM and Lyta Hamm, his wife, Respondents, v. John CAMEROTA, Sr. and Jane Doe Camerota, his wife, Larry Sisson, by his Guardian; Lena A. Sisson, and John Camerota, Jr., Defendants, Preferred Insurance Exchange, Appellant.

Page 34

48 Wn.2d 34

290 P.2d 713

B. Franklin HAMM and Lyta Hamm, his wife, Respondents, v. John CAMEROTA, Sr. and Jane Doe Camerota, his wife, Larry Sisson, by his Guardian; Lena A. Sisson, and John Camerota, Jr., Defendants Preferred Insurance Exchange, Appellant.

No. 33244.

Supreme Court of Washington, Department 1.

Dec. 1, 1955.

Wayne Murray, Jr., D. Scott Sandelin, Seattle, for appellant.

Raymond C. Brumbach, William F. Hennessey, Seattle, for respondents.

DONWORTH, Justice.

The principal issue on this appeal is whether Larry Sisson, against whom respondents recovered a judgment in a tort action, was, at the time of the automobile which gave rise to that action, an 'insured' under a certain policy of liability insurance (called a national standard policy) issued by appellant to John Camerota, Sr.

In the tort action respondents (plaintiffs therein), by their amended complaint, joined as defendants Larry Sisson, John Camerota, Sr. and his wife, and John Camerota, Jr. In this complaint it was alleged that the three Camerotas owned the car involved in the accident, that all acts alleged to have been done by either the father or the son were done for the benefit of the marital community, and that, although the car was registered in the name of the father, it was partly owned by the son and primarily maintained for the son's use and benefit. The theory upon which respondents predicated liability by the Camerotas for the alleged negligent acts of Larry Sisson in driving this car was stated in paragraph 4 of that amended complaint, as follows:

'That at all times herein mentioned the defendant Larry Sisson was the agent and employee of the defendant John Camerota, Jr. and the driver of the automobile owned by the defendants acting within the course and scope of his employment and agency and was operating the said defendants' automobile with the implied or actual permission of the said defendants John Camerota Sr. and Jane Doe Camerota, his wife, and defendant John Camerota, Jr.'

These allegations were denied in the separate answers filed by the Camerotas and by Sisson. The action was tried to a jury, and at the conclusion of all the evidence the court instructed the jury (a) to bring in a verdict in favor of respondents against Sisson only in such sum as they found respondents to have been damaged as a result of the accident, and (b) to bring in a verdict in favor of the Camerotas.

Upon the verdicts so rendered, the court entered judgment in favor of respondents and against Sisson only for $1,428 (the amount of the verdict) with costs, and dismissed with prejudice the action against the Camerotas.

Two months later, respondents filed an affidavit for a writ of garnishment. In response thereto, appellant insurance company answered, and denied that it was indebted to Larry Sisson in any sum whatever. Respondents controverted this answer by the affidavit of their attorney, which reads, in part, as follows:

'* * * Affiant believes the defendants John Camerota, Senior and John Camerota, Junior were covered by a policy of liability insurance; that by the terms of said policy any party driving their car with their express or implied permission was an additional insured. That Larry Sisson was driving defendants Camerotas' car with their express or implied permission. That Larry Sisson was therefore protected or covered by the policy. That said automobile was a 'family car' used for the business and pleasure of the Camerota Family, and was insured by the Garnishee Defendant, Preferred Insurance Exchange.'

The issue thus made in the garnishment proceeding was subsequently tried to the court sitting without a jury (before a judge other than the judge who presided at the trial of the tort action). At the close of the evidence, the court orally announced its decision in favor of respondents. Appellant's motion in the alternative for judgment notwithstanding the court's decision or a new trial was argued and denied. The court made six findings of fact and one conclusion of law, and rendered judgment in favor of respondents, against appellant insurance company as garnishee defendant in the sum of $1,428, and for costs in both proceedings.

On this appeal, appellant has made fifteen assignments of error, but we do not deem it necessary to discuss all of them.

The first claim of error is stated in appellant's brief thus:

'(1) The doctrine of res judicata or collateral estoppel by judgment should have been invoked by the trial court to prohibit the introduction of evidence as to all issues of fact tried in the main tort action which were also decisive of coverage questions under the insurance policy.'

Citing East v. Fields, 42 Wash.2d 924, 259 P.2d 639, appellant sets forth its position as follows:

'Appellant contends that the facts of permission, express or implied, was the essential element inherent in the judgment in the main tort action, which was also decisive of the question of whether Larry Sisson was an additional assured under the policy.

'The underlying principle of the doctrine of collateral estoppel and res judicata is that when the parties have actually litigated an issue in a previous action and the court has decided the controversy that issue should not be litigated again by them.'

We think that the situation presented here differs from East v. Fields, supra. We cannot tell the precise ground on which the trial court, in the tort action, directed a verdict in favor of the Camerotas. A jury trial was had in that action and no findings of fact were made. As nearly as we can ascertain, the trial court was of the opinion that respondent had failed to prove that Sisson was an agent or employee of John Camerota, Jr.

'The liability of one person for the acts or omissions of another is the exception rather than the rule, and the person who asserts such liability must establish the fact that some connection exists between the actor and the person whom he seeks to hold responsible for the actor's conduct. * * *' Walter v. Evertt School Dist. No. 24, 195 Wash. 45, 79 P.2d 689, 691.

'The general rule is that a party injured by the negligence of another, must seek his remedy against the person who caused the injury, since such person is alone liable. To this general rule the case of master and servant is an exception, and the negligence of the servant, while acting within the scope of his employment, is imputable to the master. But, to bring a case within this exception, it is necessary to show that the relation of master and servant exists between the person at fault and the one sought to be charged for the result of a wrong; and the relation must exist at the time, and in respect to the particular transaction out of which the injury arises.' Roletto v. Department Stores Garage Co., 30 Wash.2d 439, 191 P.2d 875, 877.

Therefore, unless the existence of such a relationship was proven, the alleged fact that Sisson had the permission, expressed or implied, of all the Camerotas would not of itself be a sufficient basis upon which to hold them liable in the tort action for his negligent acts. On the other hand, proof of the giving of such permission was vital in the garnishment proceeding in order to show that Sisson was covered as an additional insured by the omnibus clause of the insurance policy.

We, therefore, cannot find that the issue here was determined in the tort action, and that the judgment therein was res judicata of the issue whether Larry Sisson had the named insured's permission to drive the car when the accident occurred.

Appellant's first assignment of error is not well taken.

Appellant next assigns as error the making of certain findings of fact and the court's refusal to enter certain proposed findings. The crucial finding is No. 5, reading as follows:

'That John Camerota, Sr., placed said car in his son's hands without restrictions and with authority to act in every way as if the legal title was in his name, and with full rights of ownership.'

and the following portion of No. 6:

'* * * and said Larry Sisson had been placed in possession thereof and the keys to said automobile by John Camerota, Jr., who at that time gave full permission to said Larry Sisson to use said automobile.'

The trial court in its oral decision discussed the evidence on which these findings were based, and sought to distinguish the case of Holthe v. Iskowitz, 31 Wash.2d 533, 197 P.2d 999, 1005, on which appellant relies, as follows:

'The Court: In this Holthe case, the title of the car was in the name of the mother, and it had been in the name of the husband, now deceased, and the mother got title through probate proceedings. It is true that the mother didn't drive, and the daughter used that car to some extent for her own purposes, but to a large extent running her mother around and for household purposes. The daughter had no interest in the automobile at all. She sometimes paid for gasoline, portion, some of the gasoline, and maintenance bills, and the mother paid for others. In that case, she gave...