Safeco Ins. Co. of America v. Pacific Indem. Co.

Citation401 P.2d 205,66 Wn.2d 38
Decision Date15 April 1965
Docket NumberNo. 37446,37446
PartiesSAFECO INSURANCE COMPANY OF AMERICA, Inc., a Washington corporation, Respondent, v. PACIFIC INDEMNITY CO., a California corporation, Appellant.
CourtUnited States State Supreme Court of Washington

Guttormsen, Scholfield, Willits & Ager, Jack P. Scholfield, Seattle, for appellant.

Clinton, Moats, Andersen & Fleck, James A. Andersen, Seattle, for respondent.

BARNETT, Judge. *

This is an appeal from a judgment of the Superior Court of King County in which plaintiff (respondent) obtained a judgment against defendant (appellant) in the sum of $3,618, plus costs. Final determination is sought as to which of two insurance policies covers liability arising out of a collision between two automobiles. Only one accident occurred and each insurance company contends the other is primarily liable.

The respondent Safeco Insurance Company of America, Inc. (hereinafter referred to as Safeco), carried the liability insurance of one Arnold W. Gilbert. The appellant Pacific Indemnity Co. (hereinafter referred to as Pacific), carried the liability insurance of Claude Larson, doing business as Larson Auto Brokers.

The case was tried without a jury and the court made findings of fact and conclusions of law favorable for Safeco. The court found, Inter alia,

'4. That on November 16, 1958, plaintiff's assureds, Arnold W. Gilbert and his son James Gilbert, went to the Larson Auto Brokers used car lot located in Seattle, Washington, for the purpose of looking at a used car to be purchased for James Gilbert. James Gilbert was sixteen years of age and a licensed driver. One Laddie Henderson, who was a salesman for Mr. Claude Larson d/b/a Larson Auto Brokers, showed a 1951 Chevrolet 4-door sedan owned by Larson Auto Brokers to Mr. Arnold W. Gilbert and his son James Gilbert. Mr. Laddie Henderson was told that the 1951 Chevrolet was being purchased for James Gilbert and so stated in a conversation that he had with Mr. Arnold W. Gilbert and Mr. James Gilbert. It was part of the established practice and usage at this used car lot to let prospective purchasers try out automobiles before they bought them. Approximately five percent of the cars sold at this time at this car lot were sold to persons under twenty-one years of age. It was also the established custom and usage at the car lot that when persons under twenty-one years of age came in with a responsible adult they would be permitted to take out a car together. Mr. Arnold W. Gilbert was given express permission to try out the car, and James Gilbert was also given implied permission to drive the car. Mr. Arnold W. Gilbert drove the car out of the lot and later, while he and James Gilbert were trying out the car, Mr. James Gilbert was permitted to drive the automobile.

'5. The 1951 Chevrolet being driven by James Gilbert, accompanied by Mr. Arnold W. Gilbert, his father, was, on November 16, 1958, shortly after they had picked up the automobile from Larson Auto Brokers, involved in an accident at the intersection of West 62d Street and Fifth Northwest in the general vicinity of the Larson Auto Brokers place of business, said accident being in the City of Seattle, King County, Washington. The other vehicle involved in the accident was a 1952 Chevrolet 4-door sedan belonging to and being driven by Mabel S. Brown who was accompanied in her car at the time of the accident by her minor son Waldo Brown. Both Mabel Brown and her minor son Waldo Brown were injured in the accident and the accident was caused by the negligence of the driver James Gilbert in failing to yield the right of way to the Brown vehicle which was on his right in an unmarked intersection, and in driving at an excessive rate of speed.'

Pacific assigns as error the admitting into evidence of certain testimony of James Gilbert. He testified by deposition.

The question propounded was:

'Did you do anything at all while you were at Larson's Auto Brokers, either before or after the accident, which might indicate you were going to drive the car? A. Well, the salesman did know the car was for me and he said that, well, it was made clear because my dad had told them he didn't want the car. He did say himself that he knew the car was for me.' (Italics ours.)

The court sustained the objection to the first sentence and admitted the last.

It is argued that the answer was not responsive. Patently the answer was competent and admissible with reference to the implied permission of James Gilbert to drive the car and it was not reversible error requiring a new trial. Bussard v. Fireman's Fund Indemnity Co., 44 Wash.2d 417, 267 P.2d 1062. Furthermore, the testimony was adduced by deposition. The court can see upon inspection that, although the form of the question may be technically objectionable, the answer furnishes proper evidence. Substance, rather than form, should be heeded. See 16 Am.Jur., Depositions § 132, p. 757.

The second assignment of error focuses attention upon finding of fact No. 4. It is contended that the evidence does not support a finding that Laddie Henderson was told that the car was for James Gilbert, when that salesman stated as much in a conversation he had with Arnold Gilbert and James Gilbert. It is urged, also, that there is no evidence that persons under 21 would be permitted to take cars out if accompanied by a responsible adult, or that James Gilbert was given implied permission to drive the car.

The testimony of James Gilbert to which we have previously made reference sustains the finding that the salesman knew that the car was intended for James Gilbert. Relating to whether persons under 21 would be permitted to take cars out, Claude Larson's pretrial deposition reads in part:

'Q. All right. Now when a young man or a young lady would come in to purchase a car and would bring an adult in, an obviously responsible person or someone that appeared to you or your salesman to be responsible, would you let them take the car out and try it under those circumstances? A. Yes.'

Later at trial, on cross-examination, Mr. Larson testified:

'Q. Okay. And someone under 21 who came into your lot with a responsible adult was permitted to take out a car, was he not? A. Yes. I would give it to the adult if he looked like a respectable person.'

On direct examination, Mr. Larson testified to the effect that he would not let a teenager drive unless he or a salesman went along.

Pacific contends that the testimony elicited from Mr. Larson leads to a contrary inference than that persons under 21 would be permitted to take cars out if accompanied by a responsible adult. Such an argument relates to the weight of the evidence only rather than to the lack of it. Since there was substantial evidence to warrant the trial court's finding, we will not disturb that finding. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183.

The second and third assignments of error question whether there was sufficient evidence to find that James Gilbert was given implied permission to drive the car and was an insured under Pacific liability.

The omnibus clause in Pacific liability policy provides as follows:

'* * * the unqualified word 'insured' includes the named insured and also includes * * * (2) any person while using an automobile covered by this policy, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *'

In the instant case, we have a 16-year-old boy who went with his father to a used car lot for the purpose of looking at a used car to be purchased for the son. The boy was a licensed driver. A salesman showed a car owned by the Larson Auto Brokers to the father and son. The salesman knew the car was being purchased for the son. It was part of the established practice and usage at this lot to let prospective purchasers try out automobiles before they bought them. Approximately 5 per cent of the cars sold at this time at this lot were sold to persons under 12 years of age. It was the established custom and usage at this lot that when persons under 21 years of age came in with a responsible adult they would be permitted to take out a car together. The father was given express permission to drive the car. There was no admonition against the car being driven by the son. Does the evidence justify a finding that Larson gave implied permission to James to drive the car?

This court, in McKee v. Garrison, 37 Wash.2d 37, 39, 221 P.2d 514, 515, discussed 'implied permission' contained in a policy of liability insurance:

'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 case. And wherever the terms 'consent', 'permission', or the like, appear and in the policy, the courts consider that such terms may be read as though the word 'implied' preceded them. A general permission would suffice, although if express permission is relied upon, it must be of an affirmative character, directly and distinctly stated, clear and outspoken, and not left merely to inference. An implied permission, on the other hand, is not confined to affirmative action, but means an inferential permission, in which a presumption is raised from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent.'

'In order to infer permission within the meaning of the policy clause before us, there must be some course...

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