Holthe v. Iskowitz

• Decision Date: 30 September 1948
• Docket Number: 30526.
• Citation: 31 Wn.2d 533,197 P.2d 999
• Parties: HOLTHE et ux. v. ISKOWITZ et al.
• Court: Washington Supreme Court

197 P.2d 999

31 Wn.2d 533

HOLTHE et ux. v. ISKOWITZ et al.

No. 30526.

Supreme Court of Washington.

September 30, 1948

Department 2.

Action by George Holthe and Geneva Holthe, husband and wife, against Fred W. Iskowitz for personal injuries and property damage sustained in an automobile accident, wherein a writ of garnishment was directed against the Hartford Accident &amp Indemnity Company as alleged insurer of the owner of the vehicle driven by defendant. From the judgment, the garnishee appeals.

Judgment reversed with instructions.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Metzger Blair, Gardner & Boldt, of Tacoma, for appellant.

J Duane Vance and Bassett & Geisness, all of Seattle, for respondents.

BEALS Justice.

During the year 1947, Mrs. Bessie Uhlman, a resident of the city of Tacoma, was the owner of a 1940 Dodge four-door sedan. October 19, 1946, Hartford Accident and Indemnity Company wrote a policy of insurance in Mrs. Uhlman's favor, protecting her, inter alia, against liability for damages resulting to third parties from the operation of the automobile.

Mrs. Uhlman never drove the car, it having always been driven by her daughter, Miss Betty Uhlman (who resided with her mother as a member of her household), a college student, twenty-two years of age, who was employed part time in Tacoma. Mrs. Uhlman was also employed, and Betty drove her mother to the latter's place of employment every morning, and also upon other occasions, whenever requested to do so. Betty drove the car for other family purposes, as well as to suit her own convenience, and supervised the care and maintenance of the car, the bills for the upkeep and operation of the car being paid generally by Mrs. Uhlman and occasionally by Betty.

During the afternoon of February 23, 1947, Betty was assisting at the U.S. O. clubhouse in Tacoma, where she occasionally worked at the snack bar. For some time, she had known Eugene Murphy (a soldier in the United States army, then a patient at Madigan General Hospital), who was a friend of Fred W. Iskowitz, also a soldier, stationed at Fort Lewis. Betty was casually acquainted with Iskowitz. and knew that he was a friend of Murphy. Later in the afternoon, Iskowitz requested Betty to loan him the car, stating that he wanted to take Murphy to accomplish an errand somewhere in Tacoma, his use of the car being strictly for his own purposes and convenience. Without saying anything to Murphy, Betty granted the request, and Iskowitz proceeded to drive the car to carry out the purpose for which he borrowed it.

At about five o'clock, p. m., while driving upon a public street in the city of Tacoma, a collision occurred between the Uhlman car, driven by Iskowitz, and a car driven by George Holthe, in which Geneva Holthe, his wife, was a passenger. The collision resulted in injuries to Mrs. Holthe, and damage to their automobile.

Mrs. Uhlman made a report of the accident to the Tacoma agency of her insurer, and, thereafter, Mr. Holthe negotiated with the insurer, without reaching any adjustment. Mr. Holthe presented a claim to the insurer's agent, stating that he made claim for damages against Mrs. Uhlman, as owner of the car, and that, at the time of the accident, the car was driven by Fred W. Iskowitz, who had borrowed the car 'to use for his own purposes.' No adjustment having been reached, Mr. and Mrs. Holthe instituted this action against Fred W. Iskowitz, who, meanwhile, had been discharged from the army and had departed for his home in the city of New York.

Pursuant to the statute, Rem.Rev.Stat., Vol. 7A, § 6360-129, the summons and complaint were served upon Iskowitz by filing a copy thereof with the secretary of state of Washington, and by sending a copy to Iskowitz at his New York address, by registered mail.

The defendant, Iskowitz, made no appearance in the action, and, May 23, 1947, judgment was rendered against him and in plaintiffs' favor, by the superior court for King county, in the sum of $820.50.

July 18, 1947, plaintiffs procured a writ of garnishment, directed to the Hartford Accident and Indemnity Company, which had written the policy of insurance in Mrs. Uhlman's favor, requiring the garnishee to answer concerning its indebtedness to Fred W. Iskowitz. The garnishee answered, denying any indebtedness on its part to Iskowitz and denying that it had, in its possession or under its control, and personal property or effects belonging to the defendant.

Thereafter, the plaintiffs filed their affidavit controverting the garnishee's answer, setting forth certain provisions of the policy of insurance written by the garnishee in Mrs. Uhlman's favor, stating that the plaintiffs had recovered judgment against Iskowitz, as the result of the accident referred to above; that, at the time of the accident, the automobile which Iskowitz was driving was owned by Mrs. Bessie Uhlman, who was protected by the policy written by the garnishee; that, by reason of negotiations entered into between the plaintiffs and the garnishee's agent, the plaintiffs had believed that the garnishee would recognize its liability to them, and that plaintiffs had lost any remedies by way of attachment and garnishment against the defendant, Iskowitz, by reason of his having left the state of Washington.

The matter came on regularly to be tried, upon the plaintiffs' affidavit for garnishment, the garnishee's answer, and plaintiffs' affidavit filed in reply thereto.

The trial court entered findings of fact (stating several terms of the policy above referred to) and conclusions of law in plaintiffs' favor, and, December 5, 1947, rendered judgment for the plaintiffs and against the garnishee, in the sum of $820.50; the court's order denying the motion for judgment in the garnishee's favor or, in the alternative, for a new trial, having been filed the same day.

From the judgment, the garnishee has appealed, assigning error upon the ruling of the trial court denying appellant's challenge to the sufficiency of the evidence; upon the order denying appellant's motion for judgment in its favor notwithstanding the trial court's memorandum decision or, in the alternative for a new trial; upon certain of the trial court's findings and conclusions; upon the entry of the findings of fact, conclusions of law, and judgment, and, finally, upon the entry of the judgment in favor of respondents, and upon the refusal of the trial court to enter judgment in appellant's favor.

The policy of liability insurance written by appellant stated that Mrs. Bessie Uhlman was the 'named insured' therein.

Respondent George Holthe testified concerning the accident and resulting damages suffered by respondents. On behalf of respondents, the depositions of Mrs. Bessie Uhlman and her daughter, Miss Betty Uhlman, were read. As these witnesses testified by deposition, this court is in as good a position to weigh and evaluate their evidence as was the trial court.

Appellant called one witness, Frank M. Egan, who was employed as an adjuster in its claims department. The pretrial statements of Mrs. Uhlman and her daughter were offered in evidence by appellant.

In the case at bar, respondents' rights against appellant are no greater than would be those of the defendant, Iskowitz, in an action against appellant. Eakle v. Hayes, 185 Wash. 520, 55 P.2d 1072; Hinton v. Carmody, 186 Wash. 242, 60 P.2d 1108.

The automobile liability policy, written by appellant in favor of Bessie Uhlman, states that it follows the form of the 'national standard automobile liability policy,' and protects the insured both against 'bodily injury liability' and 'property damage liability.' The policy contains, inter alia, the following 'insuring agreements':

'(1) Coverage A--Bodily Injury Liability.

'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, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.

'Coverage B--Property Damage Liability.

'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 because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile. * * *

'(3) Definition of 'Insured.'

'The unqualified word 'Insured' wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named Insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named Insured. * * *'

Paragraph No. 3 of the policy, supra, is usually referred to as 'the omnibus clause.'

An 'endorsement,' entitled 'Drive Other Private Passenger Automobiles,' bearing even date with the policy, is attached thereto, and, after several other provisions in the endorsement, appears the following:

'Names of Individuals, Other Than Aforesaid Husband and Wife, Who Are Relatives of and Residents in the Household hold of the Named Insured and Who Are to be Covered Hereunder as Insured:

1. Betty Lou Uhlman College Student Daughter -------------------------------------------------- Name Occupation Relationship to Insured."

The questions to be here determined are: First, whether or not at the time the defendant, Fred W....