Odden v. Union Indem. Co.

• Decision Date: 17 March 1930
• Docket Number: 22121.
• Citation: 286 P. 59,156 Wash. 10
• Parties: ODDEN v. UNION INDEMNITY CO.
• Court: Washington Supreme Court

286 P. 59

156 Wash. 10

ODDEN v. UNION INDEMNITY CO.

No. 22121.

Supreme Court of Washington

March 17, 1930

Department 1.

Appeal from Superior Court, King County; Charles P. Moriarty, Judge.

Action by Melvin Odden against the Union Indemnity Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Bausman Oldham & Eggerman and Edw. L. Rosling, all of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

PARKER, J.

The plaintiff, Odden, seeks recovery upon an automobile accident liability policy of insurance issued by the defendant indemnity company, claiming to be a beneficiary thereunder by virtue of its terms and his being injured while riding in the insured automobile as the result of the negligence of its driver. A trial upon the merits in the superior court for King county, sitting without a jury, resulted in findings and judgment awarding to Odden recovery in the sum of $2,778 against the indemnity company, from which it has appealed to this court.

The indemnity company being duly authorized to do a general insurance business in this state, on May 28, 1927, issued to W. L. Grill, as the named assured and owner of the automobile, its accident automobile liability insurance policy, whereby it agreed, in so far as we need here notice the terms of the policy, as follows:

'I. To insure the assured hereunder against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting at any time therefrom, accidentally suffered, or alleged to have been accidentally suffered, by any person or persons caused by the automobile. * * *

'Subject to the following Conditions: * * *

'Condition E. The insolvency or bankruptcy of the insured hereunder shall not release the Company from the payment of damages for injuries sustained or loss occasioned during the life of this policy, and in case execution against the insured is returned unsatisfied in action brought by the injured, or his or her personal representative in case death results from the accident because of such insolvency or bankruptcy, then an action may be maintained by the injured person or his or her personal representative against this Company under the terms of this Policy, for the amount of the judgment in the said action not exceeding the amount of this Policy. * * *

'Condition K. The unqualified word 'Assured,' wherever used in this Policy, shall be construed to include, in addition to the named Assured in this Policy, any person or persons while riding in or legally operating any automobile, insured hereunder and any person, firm or corporation legally responsible for the operation thereof with the permission of the named Assured, or if the named Assured be an individual, with the permission of an adult member of the Assured's household other than a chauffeur or 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 and the agents or employees thereof. * * *'

The automobile is specifically described elsewhere in the policy. The insurance liability of the indemnity company, by the terms of the policy, here applicable, is limited to $10,000. The trial judge found in part as follows: 'VI. That thereafter the said W. L. Grill turned said automobile over to one H. E. Hickey to use and operate as his own for business and pleasure and consented to the operation of said automobile by the said Hickey personally and by others. That the said H. E. Hickey took possession of said automobile from the said W. L. Grill and with his consent and permission kept the same in a public garage in the City of Seattle, and that thereafter and for two or three months prior to and including the 3rd day of July, 1927, the said H. E. Hickey did personally use and operate said automobile for business and pleasure and allowed and permitted others to use and operate the same for business and pleasure, and that the said W. L. Grill knew of such use and operation and consented thereto and permitted the same without objection, and that on or about the 3rd day of July, 1927, the said H. E. Hickey authorized one Myron Bullock to use and operate said automobile, and that pursuant to said authorization said Myron Bullock took said automobile from the public garage where it was kept in the said City of Seattle and drove the same on and about the streets of said city.

'VII. That on or about 4:30 A. M. on the said third day of July, 1927, the said Myron Bullock invited the plaintiff [Odden] and two other young men to ride in said automobile, whereupon the plaintiff and his companions entered said automobile and rode therein. That shortly thereafter and while said parties were riding in said automobile, the said Myron Bullock drove and operated said automobile at a high, dangerous, unlawful, and reckless rate of speed, whereby he lost control of said automobile and caused the same to run up over the street curb and on to the sidewalk and to collide with an iron electric light pole, wrecking said automobile and throwing the occupants out of it and causing severe, painful and permanent physical injuries to the plaintiff. * * *'

In August, 1927, Odden commenced an action in the superior court for King county against Bullock and Hickey, seeking recovery of damages from them which he claimed to have suffered as the result of Bullock's negligent driving of the automobile. Thereupon Bullock and Hickey gave to the indemnity company notice of that action, and demanded that it defend them therein, and thereupon the indemnity company, through its attorneys, appeared in that action on behalf of Bullock and Hickey and defended them therein. Its concern was, of course the possibility of any judgment which might be rendered in favor of Odden against Bullock and Hickey becoming a legal liability against it, under its policy. Thereafter such proceedings were had in that action that on February 20, 1928, final judgment was by the superior court rendered therein awarding to Odden recovery of damages against Bullock and Hickey in the sum of $2,778; which judgment was thereafter on August 8, 1928, upon appeal, affirmed by this court. Odden v. Bullock, 148 Wash. 516, 269 P. 825. Thereafter execution in behalf of Odden was duly issued upon that judgment, which was returned wholly unsatisfied, the sheriff certifying that he was unable to find any property belonging to Bullock or Hickey ...