McKee v. Garrison

• Decision Date: 22 August 1950
• Docket Number: 31380.
• Citation: 221 P.2d 514,37 Wn.2d 37
• Parties: McKEE, v. GARRISON et al.
• Court: Washington Supreme Court

221 P.2d 514

37 Wn.2d 37

McKEE, v. GARRISON et al.

No. 31380.

Supreme Court of Washington.

August 22, 1950

Department 1.

Virgil Scheiber, Vancouver, for appellant.

McMullen Snider & McMullen, Vancouver, for respondent.

GRADY, Justice.

This appeal brings Before the court for determination which of two insurance policies cover liability arising out of a collision between an automobile and a truck.

Gertrude Reese owned an automobile, and held a policy issued by Employers' Liability Assurance Company, covering herself and anyone operating it with her permission.The truck was owned by Roy McKee.Roy Garrison owned an automobile, and held a policy issued by Farmers Automobile Inter-Insurance.Exchange, which covered him in the use of it and also his operation of any other private automobile.

Garrison and wife were upstairs tenants of Reese.She left her home for work early in the morning.Her automobile was very noisy when being started, which was disturbing to Garrison.He volunteered to remedy the trouble with the automobile and secured its keys.He told Reese he would clean the carbureator and the breaker points on the timer.She informed him that the brake on one of the wheels had been grabbing and suggested when he got through with the cleaning he might find out what was wrong with the brake.Garrison cleaned the breaker points and adjusted the carbureator.He believed he would be assisted in finding out what was wrong with the brake if he drove the automobile.After driving a few blocks he discovered the difficulty.At an intersection a little further on, the collision occurred.Reese did not give Garrison any affirmative permission to drive her automobile.Any permission to do so, making coverage applicable, must be implied.

In the process of adjustment, and in the litigation which followed, Exchange contended that Garrison was driving the Reese automobile with her permission, hence Employers' policy covered the damages recoverable; also that there had been a noncompliance with a provision in its policy to the effect that written notice of claim must be given 'as soon as practicable,' in that Garrison did not notify it of the collision until twenty-four days after it occurred.

McKee sued Garrison and Reese, obtained a judgment against the former, and has been awarded a judgment against Exchange.

The court found and concluded that the Reese automobile was driven by Garrison without her permission, and that notice of the collision was given Exchange in accordance with the terms of its policy.

What may constitute implied permission on the part of a covered owner of an automobile to another to drive it, so as to give such driver protection as an additional insured, is discussed in 7 Appleman on Insurance Law and Practice, § 4365, page 166, where the author states:

'It has been definitely held that it is not essential that express permission be given for use of the automobile by the operator in order to give him protection as an additional insured permission may be implied for such use under the facts and circumstances of the...