Keseleff v. Sunset Highway Motor Freight Co., 26155.

• Decision Date: 22 September 1936
• Docket Number: 26155.
• Parties: KESELEFF v. SUNSET HIGHWAY MOTOR FREIGHT CO. et al. GOLDBERG v. SAME.
• Court: Washington Supreme Court

60 P.2d 720

187 Wash. 642

KESELEFF v. SUNSET HIGHWAY MOTOR FREIGHT CO. et al.

GOLDBERG v. SAME.

No. 26155.

Supreme Court of Washington

September 22, 1936

Department 1.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Consolidated actions by Theodore Keseleff and by Minnie Goldberg, as administratrix of the estate of Hyman Goldberg, deceased against the Sunset Highway Motor Freight Company and another. From judgments for plaintiffs, defendants appeal.

Reversed and remanded, with direction.

J. Speed Smith & Henry Elliott, Jr., of Seattle for appellants.

Preston Thorgrimson & Turner and Bogle, Bogle & Gates, all of Seattle, for respondent.

GERAGHTY Justice.

We have here, consolidated for purposes of trial and appeal, two actions growing out of a head-on collision between two trucks on the Sunset Highway within the limits of the town of Snoqualmie. One of the trucks was a heavy Fageol with trailer attached, operated by the Sunset Highway Motor Freight Company and driven by its employee, William Sherman. The other was a light Chevrolet, owned and driven at the time by Hyman Goldberg, who was accompanied in the cab by an employee, respondent Theodore Keseleff. The Fageol truck was thirty-five feet long and the trailer about the same length. The trucks will hereafter be referred to respectively as the Sunset and the Goldberg. The collision occurred about 9:30 p. m. on October 23, 1934. The night was dark and the weather cloudy and rainy.

The sunset truck was being driven easterly in the direction of Yakima and the Goldberg truck westerly toward Seattle. The paved highway, where the accident occurred, was twenty feet in width with a four-foot graveled shoulder on the south side and beyond this a grass and earth embankment.

Goldberg was so seriously injured that he died shortly after the accident. Keseleff suffered severe injuries.

The respondent Minnie Goldberg, as administratrix of her husband's estate, brought action to recover for his death, as well as for property damage resulting from the destruction of the truck. Keseleff brought action for the personal injuries sustained by him. In the action brought by the administratrix, the appellant Aetna Casualty & Surety Company, hereafter referred to as the insurance company, was made party defendant upon the allegation that it had issued to appellant Sunset Highway Motor Freight Company a liability and property damage insurance policy. The insurance company was not originally named as a party in the Keseleff action, but when the cases were consolidated for trial, it was stipulated that the complaint in the latter case be deemed amended in this respect, with the right reserved to appellants to challenge the joinder of the insurance company. Later, the trial court overruled the appellants' objection to the inclusion of the insurance company as party defendant in the actions. After trial to a jury, verdicts were returned in favor of the respondents.

The appellants seasonably made motions for nonsuit, dismissal, judgments notwithstanding the verdicts, and new trials, all of which were denied, and judgments entered upon the verdicts.

The assignments of error made by the appellants may be considered under three heads: First, the contention that the insurance company was not a proper party defendant; second, the insufficiency of the evidence to make a case for submission to the jury; and, third, errors for which it is contended new trials should have been granted.

Considering, first, the joinder of the insurance company, the complaint in the Goldberg Case, which in this respect was adopted in the Keseleff case and admitted by the appellants, alleged that the insurance company did 'issue to said defendant and file with said Department of Public Works of Washington, its liability and property damage insurance policy No. 49J408 in the amount of $5,000 for injury to one person, $10,000 for one accident and $1,000 for damage to property, all as required by law and the rules and regulations of said Department of Public Works of Washington, which said policy was in full force and effect during the month of October, 1934.'

Except for its reference to the law and rules and regulations of the department of public works, this allegation would imply no more than the execution of the ordinary liability policy by the insurance company, which would establish only a derivative right in the injured party, arising out of a judgment in favor of the insured. The allegations would negative any right in the injured party to include the insurance company as party defendant in his action against the insured. If reference is had to the governing statute, it will not aid respondents. Section 15 of chapter 166, Laws 1933, p. 620, as amended by section 7 of chapter 55, Laws 1933, Ex.Sess., p. 146, reads as follows: 'The department shall, in the granting of permits to for hire carriers under this act, require such for hire carriers to first procure and file liability and property damage insurance from a company licensed to write such insurance in the State of Washington for such limits of liability, and upon such terms and conditions as the department shall determine to be necessary for the reasonable protection of the public against damage and injury for which such carrier may be liable by reason of the operation of any motor vehicle.' Rem.1934 Supp. § 6381-15. (Italics ours.)

It will be seen that the details of the liability policies required by this section are to be fixed by the department of public works.

Section 2 of chapter 55, Laws 1933, Ex.Sess., p. 141, also, provides: 'The department shall have power and authority, by general order or otherwise, to prescribe rules and regulations in conformity with this act, applicable to any and all such certified freight carriers; and within such limits shall have power and authority to make orders and to prescribe rules and regulations affecting certified freight carriers.' Rem.1934 Supp. § 6381-1 1/2.

Pursuant to this authority, the department of public works, on February 2, 1934, issued general order M. V. No. 48, establishing and prescribing 'Rules and Regulations governing motor freight carriers operating under Certificates of Public Convenience and Necessity and Contract Hauler and For Hire Carrier Permits, as provided in chapter 166, of the Laws of 1933, as amended by chapter 55 of the Laws of the Extraordinary Session of 1933.' After the certification and publication of these rules and regulations, they were printed by the public printer, for general use. Rule 35 embodied in these rules and regulations is as follows:

'All insurance policies filed covering liability and property damage shall carry the following form of endorsement:

'Endorsement.

'The policy to which this endorsement is attached is written in pursuance of, and is to be construed in accordance with chapter 166, Laws of 1933, as amended by chapter 55, Laws of the Extraordinary Session of 1933 of the State of Washington, and acts amendatory thereof, and supplemental thereto, and the rules and regulations of the Department of Public Works of Washington adopted thereunder. The policy is to be filed with the State in accordance with said statute.

'In consideration of the premium stated in the policy to which this endorsement is attached, the Company agrees to pay any final judgment for personal injury, including death resulting therefrom, and/or damage to property (excluding cargo) of any person or persons other than the assured, caused by any and all motor vehicles (as defined by section 1(c) of chapter 166, Laws of 1933, State of Washington, as amended) operated by the assured pursuant to a certificate or a permit issued by the Department of Public Works of Washington in accordance with said above named chapters, and acts amendatory thereof and supplemental thereto, within the limits set forth in the following schedule of insurance; and further agrees that upon its failure to pay any such final judgment, such judgment creditor may maintain an action in any court of competent jurisdiction to compel such payment. Nothing contained in the policy or any endorsement thereon, nor the violation of any of the provisions thereof by the assured may relieve the Company from liability hereunder or from the payment of such judgment.'

The policy is not attached to the complaint, nor is it contained in the record, but since the complaint...