Handley v. Oakley

• Decision Date: 15 September 1941
• Docket Number: 28427.
• Parties: HANDLEY v. OAKLEY (GENERAL CASUALTY CO. OF AMERICA, Garnishee).
• Court: Washington Supreme Court

116 P.2d 833

10 Wn.2d 396

HANDLEY v. OAKLEY (GENERAL CASUALTY CO. OF AMERICA, Garnishee).

No. 28427.

Supreme Court of Washington

September 15, 1941

Department 2.

Action by Mrs. K. Handley, formerly guardian ad litem, now guardian of Reinhard Lehne, a minor, against Ralph Oakley, defendant wherein the General Casualty Company of America was garnished. From order dismissing writ of garnishment and order denying motion for judgment notwithstanding the verdict, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Skagit County; Ralph O. Olson, judge.

John W Brisky and Welts & Welts, all of Mount Vernon, for appellant.

John J Dunn and Gordon H. Sweany, both of Seattle, are for defendant, although they did not appear.

Henderson & McBee, of Mount Vernon, for respondent.

JEFFERS Justice.

This appeal is the aftermath of our decision in Handley v. Anacortes Ice Company, 5 Wash.2d 384, 105 P.2d 505. In that case, which was an action brought for and on behalf of Reinhard Lehne, a minor, against the ice company and Ralph Oakley, to recover damages for personal injuries suffered by him, and to recover damages for medical and surgical expense incurred by the parents of the minor, the jury returned a verdict in favor of plaintiff and against both defendants. On appeal to this court, the judgment entered on the verdict was affirmed as to Oakley, and reversed as to the ice company, with instructions to dismiss the action as to it.

After the going down of the remittitur, plaintiff caused a writ of garnishment to be served on General Casualty Company of America, which had issued a policy of liability insurance to the ice company, covering the truck involved herein. The garnishee defendant answered, denying liability, which answer was controverted by plaintiff.

It was stipulated and agreed in the instant case that the court might consider as true and as the facts in this case the facts as set out in the opinion in the Handley case, supra, plus the testimony of the minor, taken at the former trial. The policy in question here was admitted in evidence, and it was admitted that the policy was at all times in full force and effect, and covered the truck in question. The reservation of rights agreement, under which the casualty company defended on behalf of Oakley in the Handley suit, was also admitted.

After considering all the facts, and after argument of counsel, the court entered an order dismissing the garnishment, and allowing costs to the garnishee defendant. Motions for new trial and for judgment notwithstanding the decision were made and denied, and this appeal by plaintiff followed.

Error is based upon the order dismissing the writ of garnishment, and on the order denying appellant's motion for judgment notwithstanding the decision.

The facts as set out in the Handley case, supra, and which the trial court in this action was entitled to accept as true, may be stated as follows: The Central Labor Council of Anacortes staged a Labor Day celebration, at an athletic field in Anacortes, on Labor Day, 1937. The festivities commenced early in the afternoon, and concluded with a baseball game. Defendant Ralph Oakley was chairman of the council's refreshment committee, and ordered from the ice company ice cream in bulk, ice cream bars, and some soft drinks. Prior to Labor Day, a representative of the council had arranged with the president of the ice company for the purchase of the ice cream and soft drinks, and for the use of the truck as a storage depot during the celebration.

The truck containing the supplies arrived at the field about one o'clock, and was met by Mr. Oakley, who stepped on the running board and indicated to the driver where the truck should be parked, which was at a spot about twenty-five feet from the baseball diamond, and a little over halfway between home plate and third base. A small railing was put in position beside the truck, to keep the children in single file while approaching to receive their ice cream. Oakley was in charge of the distribution of the ice cream, assisted by other members of the council.

The first quantity of ice cream was soon exhausted, and a further supply was ordered, which was delivered by the ice company to some members of the council, at the entrance to the athletic field, and by them carried by hand to the place where the truck was parked. Apparently it was during the dispensing of this second lot of ice cream that the minor, Reinhard Lehne, was injured.

At the conclusion of the first portion of the program, it was requested over the loud speaker that the field be cleared, and shortly thereafter the ball game commenced. During the fourth inning, the minor was standing near the truck, when a batter struck a foul ball, which hit the boy on the head, seriously injuring him.

In spite of the stipulation in regard to the facts, appellant, on page 3 of her brief, states: 'As he (referring to the minor) reached up to receive it (referring to the ice cream), he was struck on the left side of the head with a sharply-hit foul ball.'

Respondent takes exception to the above statement, contending that the testimony does not show that at the time the minor was struck he was actually being handed some ice cream by someone on the truck.

The testimony of the minor was as follows:

'Q. Where were you when you got hurt? A. I was standing by the truck.

'Q. What was being given away or dispensed out of the truck? A. Ice cream.

'Q. When you were hit with a baseball what were you doing at the truck? A. I was getting my ice cream.'

While we doubt that the testimony of the minor can technically be construed as contended for by appellant, we are of the opinion it would make no difference in this case whether the minor was actually reaching up to receive the ice cream at the time he was struck, or merely standing there waiting to receive his ice cream.

It is admitted by respondent that the provisions of the policy set out in appellant's brief are correct, and are the material provisions. They are as follows:

'General Casualty Company of America and General Insurance Company of America * * * do hereby * * * agree with the insured named in the declarations made a part hereof, in consideration of the payment of the premiums. * * *

'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury * * * sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile * * *

'The unqualified word 'insured' wherever used in coverages A and B [coverage A being bodily injury coverage] and in other parts of this policy when applicable to these coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided the disclosed and actual use of the automobile is 'pleasure and business' or 'commercial' each as defined herein, and provided, further, that the actual use is with the permission of the named insured, who, if an individual, may give such permission through an adult member of his household other than a chauffeur or domestic servant.'

'Item 6. The purposes for which the automobile is to be used are Commercial Purposes--Business & Pleasure.

'(a) The term 'pleasure and business' is defined as pleasure, personal use and family use, including business purposes. (b) The term 'commercial' is defined as the transportation or delivery of goods or merchandise and other business uses in connection with the insured's business occupation as expressed in Item 1, including occasional pleasure use for the named insured and family. (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.' It is contended by appellant that Oakley, having been given permission to use the truck, is an additional insured under the policy; that injury was caused by an accident arising out of Oakley's maintenance or use of the truck, in his or his organization's business or pleasure; and that the insurance company is obligated to pay the judgment.

We do not understand that respondent contends it would not be liable if Oakley is an insured under the terms of the policy, and if the accident happened as the result of the maintenance, operation or use of the truck, but it is contended by respondent that Oakley is not an additional insured under the policy, and that it never was the intention of respondent or the ice company, the named insured, that the policy should insure against the liability of a gratuitous bailee for that bailee's invitees. In other words, it is respondent's contention that the wording of the policy does not contemplate a situation where the direct cause of the accident is a source independent of the truck, nor was it the intention of the parties, in the use of the phrase 'arising out of the ownership, maintenance or use of the automobile,' to cover such a situation.

We agree with respondent that, this being a policy of automobile insurance, the primary object of the policy is to indemnify the policyholder for injury for which it might be liable on account of the ownership, maintenance or use of the truck.

It is also possible, and probable, that the additional protection afforded by the policy was made necessary because of the rules of evidence relative to the so-called prima facie cases, illustrated by the case of Steiner v. Royal Blue Cab Co., 172 Wash. 396, 20 P.2d 39. It is also probably true that the additional coverage as to loading and unloading was made necessary by the hazard of injury to third persons by the...