Hinton v. Carmody

• Decision Date: 19 May 1936
• Docket Number: 25784.
• Parties: HINTON v. CARMODY et al. [*]
• Court: Washington Supreme Court

60 P.2d 1108

186 Wash. 242

HINTON v. CARMODY et al. ^[*]

No. 25784.

Supreme Court of Washington, En Banc.

May 19, 1936

As Modified on Denial of Rehearing September 25, 1936.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Action by Archie W. Hinton, as administrator of the estate of Elsie L. Hinton, deceased, against Earl A. Carmody, Jr., and others, wherein the Associated Indemnity Corporation was served with a writ of garnishment. From a judgment dismissing the garnishment, the plaintiff appeals.

Affirmed.

Superseding opinion in 57 P.2d 1240.

John J Kennett and Graham K. Betts, both of Seattle, for appellant.

Vanderveer & Bassett, Wright & Wright, Rummens & Griffin, Padden &amp Moriarty, Monheimer & Griffin, and Winter S. Martin, all of Seattle, amici curiae.

N. A Pearson and Floyd M. Reischling, both of Seattle, for respondent.

BEALS Justice.

This appeal is part of the aftermath of our decision in the case of Hinton v. Carmody, 182 Wash. 123, 45 P.2d 32. In that case a judgment rendered upon the verdict of a jury in favor of the plaintiff against the defendants Carmody was affirmed. For a statement of the facts concerning the accident, reference is made to the opinion referred to.

After the going down of the remittitur carrying the affirmance of the judgment, the plaintiff, following the prescribed procedure, caused a writ of garnishment to be served upon Associated Indemnity Corporation, a corporation which had issued a policy of public liability insurance covering the automobile which was being driven by defendants Carmody at the time of the accident which resulted in Mrs. Hinton's death. This fact was set forth by plaintiff in the affidavit filed for the issuance of the writ of garnishment; plaintiff also alleging that the automobile was, at the time of the accident, in the possession of the Carmodys with the express permission of its owner, and that the Carmodys were then additional insureds under the policy. The garnishee defendant answered, denying any liability to plaintiff, and the trial of the action to the court resulted in findings of fact and conclusions of law in favor of the garnishee, followed by a judgment dismissing the garnishment, from which judgment the plaintiff has appealed.

The following portions of the insurance policy written by respondent are material to this inquiry:

'Risks Not Covered--* * * This policy shall be null and void as respects Items 3 and/or 4 and/or 5 if the interest of the insured in the property be other than unconditional and sole ownership, or if the subject of the insurance be or become encumbered by any lien or mortgage, except as stated in the declarations or otherwise endorsed thereon. * * *

'Insured Defined--The unqualified term 'insured' wherever used in this policy, shall include in each instance every person entitled to protection hereunder, but the qualified term 'named insured' shall apply only to the person, firm or corporation named and described as such herein.

'Additional Insured--Except as to any risk not covered by this policy, the terms and conditions of the insurance as respects Items 1 and/or 2 of this policy are so extended as to be available in the same manner and under the same conditions as they are available to the named insured, to any person, firm or corporation, hereby styled Additional Insured, while riding in or legally operating any of the automobiles covered hereunder for the purposes stated in the declarations, and to any person, firm or corporation legally responsible for such operation thereof, provided such use or operation is with the permission of the named insured, or, if the named insured is an individual, with the permission of an adult member of the insured's household other than a chauffeur or a domestic servant; except that the terms and conditions of this policy shall not be available to a public automobile garage, automobile repair shop, automobile sales agency, automobile service station, or the proprietors, agents or employees thereof. * * *

'Named Insured Paul C. Kauffman &/or Northwest Instrument Co.'

The court, after reciting the former judgment, made, inter alia, the following findings of fact:

'The automobile was purchased by the minor R. P. Kauffman with his own money; that the father P. C. Kauffman took out a policy of public liability insurance, with garnishee defendant Associated Indemnity Corporation, covering the automobile in question, in which policy the father P. C. Kauffman and the Northwest Instrument Company were the named assured; the automobile was loaned by R. P. Kauffman, a minor, without permission of P. C. Kauffman, to defendants Earl A. Carmody, Jr. and Earl A. Carmody, Sr. who were using said automobile at the time of the accident; neither of the Kauffmans were riding in the automobile at the time of the accident; that the use of said automobile was entirely on the business of Earl A. Carmody, Sr. and Earl A. Carmody, Jr. and not being used in the business of or on account of said Kauffmans or in any way or manner.

'That R. P. Kauffman was a minor, being under the age of twenty-one (21) years at the time of the accident.

'That the plaintiff was unable to obtain any payments on said judgment from the defendants Earl A. Carmody, Jr. or Earl A. Carmody, Sr., the defendants against whom said judgment was obtained; that writ of garnishment was issued against the Associated Indemnity Corporation a corporation, being the corporation that issued said liability policy of insurance.

'That said insurance policy extends its protection to additional parties operating the automobile with the permission of the named assured or with the permission of an adult member of the assured's household other than a chauffeur or a domestic servant.

'That no such permission, either express or implied was given by P. C. Kauffman or the Northwest Instrument Company, and the minor son, R. P. Kauffman not being an adult, his permission to said Carmodys for the use of the automobile would not be binding upon the named assured, and therefore the defendants Carmody against whom the jury returned a verdict did not become assureds under the terms of said policy, and were not covered under said policy.'

At the time of the accident, Robert P. Kauffman, the owner of the car, was 20 years and 9 months old. His father, P. C. Kauffman, was the principal owner of Northwest Instrument Company, and young Kauffman sometimes used his car in connection with the business of the company and occasionally on errands for his father. It was for this reason that P. C. Kauffman took out and paid for the insurance policy in question. It appears that the father had signed the conditional bill of sale of the car, for the reason that his son was under 21 years of age, and it cannot be questioned but what the father and the company had an insurable interest in the car under Rem.Rev.Stat. § 7033, which reads: "Insurable interest' is every interest in property, or any relation thereto, or liability in respect thereof, of such a nature that a contemplated peril might directly damnify the insured.'

Appellant argues that Robert was an adult, but we cannot agree with this contention. Rem.Rev.Stat. § 10548, reads as follows: 'All persons shall be deemed and taken to be of full age for all purposes at the age of twenty-one years and upwards.'

Under the statute and the authorities, a person who has not reached the age of 21 years is a minor. State v. Navone, 180 Wash. 121, 39 P.2d 384; Lucas v. United States Fidelity & Guaranty Co., 113 N.J.Law, 491, 174 A. 712; 1 C.J. 1403.

The policy here in question is a liability, and not an indemnity, policy. Fenton v. Poston, 114 Wash. 217, 195 P. 31; Landaker v. Anderson, 145 Wash. 660, 261 P. 388; Johnson v. McGilchrist, 174 Wash. 178, 24 P.2d 607; Gooschin v. Mercer Casualty Co., 178 Wash. 114, 34 P.2d 435. Under these cases, a judgment against the insured is a liability imposed by law, which, under the policy, the insurer is bound to pay, and, to support a writ of garnishment, the garnishee must be obligated to the principal debtor. Under a liability policy, the obligation to pay arises as soon as liability against the insured is established, and any obligation within the coverage of the policy may be reached by a writ of garnishment. This doctrine is, of course, subject to the rule laid down in the case of Eakle v. Hayes, 55 P.2d 1072, 1073, in which we held 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.'

The trial court correctly found from the evidence that the automobile was, on the day in question, loaned by Robert Kauffman to the Carmodys without the consent, express or implied, of either his father, P. C. Kauffman, or Northwest Instrument Company, the named insureds. As Robert was then a minor, and as it does not appear that any adult member of the insured's household, within the terms of the policy, gave permission to the Carmodys to use the car, the Carmodys are without the protection of the policy, unless for some reason it should be held that special circumstances bring them within its terms.

Robert P. Kauffman, the owner of the car, was named as a defendant in this action, but was released from liability by the verdict of the jury, which was returned against the Carmodys alone; judgment having been entered in accordance therewith. Appellant argues that at the time of the accident the Carmodys were driving the car with the implied permission of P. C. Kauffman, a named insured. We have carefully read the evidence in this connection, and are clearly of the opinion that appellant's contention is not supported by the record. We find...