Shirley v. American Auto. Ins. Co., 22472.

Citation163 Wash. 136,300 P. 155
Decision Date16 June 1931
Docket Number22472.
CourtUnited States State Supreme Court of Washington
PartiesSHIRLEY et ux. v. AMERICAN AUTOMOBILE INS. CO. SHIRLEY v. SAME.

Department 2.

Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.

Action by Harold Shirley and wife, and by H. A. Shirley, against the American Automobile Insurance Company. Judgment for plaintiffs, and defendant appeals.

Judgment in favor of Hazel Shirley, wife of Harold Shirley, affirmed and judgment in favor of other plaintiffs reversed with instructions.

Schwellenbach Merrick & Macfarlane, of Seattle, for appellant.

J. C McCoy, of Longview, for respondents.

FULLERTON J.

The controversy involved in this action arises out of a collision between two automobiles on the ocean beach highway in Pacific county. The highway mentioned was established by legislative enactment in 1901 (Laws 1901, p. 225), and is confined to the 'shore and beach of the Pacific Ocean' between the Columbia river or Cape Disappointment on the south to a place approximately thirty miles distant therefrom on the north. The highway proper is the 'area or space lying, abutting or fronting on said ocean and between ordinary high tide and extreme low tide.' From a point some few miles north of the beginning point of the highway, it extends almost in a straight line to its northern terminal. The width of the highway suitable for travel varies, of course, with the stage of the tide. At ordinary high tide the way is closed to travel entirely, and it widens as the tide ebbs. The surface of the beach, when not covered by the tide, forms an almost perfect roadway for automobiles.

At the time of the collision in question, the tide was at ebb. At the place of the collision and for a long distance lengthwise therefrom, the width of the way over which an automobile could be safely driven is conceded to be 187 1/2 feet. One of the automobiles was owned by H. A. Shirley aand was then being driven by his son. Five persons were in the automobile, one of whom was Hazel Regan, riding as a guest of the Shirleys. She afterwards married the son, and is one of the respondents in the present action. The automobile was being driven south on the highway. The other automobile was owned by one Wuorinen and was driven by one Olsen northerly on the highway. There was no other traffic on the highway which interfered with the drivers of either automobile.

There is a dispute in the evidence as to the side of the center of the highway the automobiles were prior to the collision. The driver of the Shirley automobile and some of its occupants testify that it was well on what was to them the right side of the center of the way, while the owner and driver of the other automobile testify that they were driving on what was to them the right side of the center of the highway, which, if true, would place the Shirley automobile on its left side of the way. The disinterested witnesses to the collision testified that both automobiles were traveling near the center of the highway, some of them state that it was possibly to the left of the center towards the upland, which would place the Shirley automobile on the wrong side of the center. As the automobiles approached each other, all the witnesses agree that they would have collided head-on had neither changed its course. When near each other, the Shirley automobile was turned to its left, and at practically the same instant the other one was turned to its right; the result being a collision at a point some distance from the left of the center of the way towards the upland.

There is a dispute also in the evidence as to the speed the automobiles were travelling. The evidence, as we read it, very clearly shows that the Wuorinen automobile was driven in excess of forty miles per hour, the maximum speed permitted by the statutes then existing; the estimates being between forty and forty-five miles per hour. The speed of the other automobile was estimated by its occupants as being between thirty and thirty-five miles per hour, and the trial court so found. The testimony of the disinterested witnesses, however, tends toward a different conclusion. One of them, who was on the upland opposite the place of collision and had an equal opportunity to observe the speed of both automobiles, testified that the Shirley automobile was traveling the faster of the two. Another, who owned a truck in which he was riding, and which was passed by the Shirley automobile some distance prior to the time it reached the scene of the accident, says that his truck was being driven at thirty miles per hour, and that the Shirley automobile passed his truck on its left and pulled away from him. While he does not give an estimate of its speed, his testimony as to distance traveled would indicate that the speed was much greater than the estimates on which the trial court founded its conclusion. Still another witness, the driver of the truck just mentioned, says that the automobile was traveling at least forty miles an hour when it passed them.

The Wuorinen automobile, for a time before the automobiles reached each other, was driven in a zigzag course, having a spread, as one of the witnesses testified, of between 15 and 20 feet. How close to the place of the collision this manner of driving continued, the evidence is in dispute. The occupants of the Wuorinen automobile testify that it ceased at least a quarter of a mile before the automobiles reached each other. The occupants of the Shirley automobile do not agree with each other as to when the zigzagging ceased. One of them testified that it continued up to the time the automobiles were turned to avoid a collision, while the testimony of the driver of the automobile indicates that it ceased at least 450 feet away. The testimony of the disinterested witnesses does not aid much in the determination of the question, although one of them, who examined the tracks of the Wuorinen automobile, testified that it had not zizagged for at least 50 feet back of the place it turned to avoid a collision.

Some of the occupants of the Shirley automobile were injured by the collision, the guest, Miss Regan, very severely so. Some time thereafter they severally instituted actions against Wuorinen, the owner of the automobile, and Olsen, the driver, to recover for the injuries suffered. Both Wuorinen and Olsen defaulted in the actions, and judgments were entered against them in the sums demanded in the complaints. Executions were issued on the judgments, which were returned unsatisfied.

Prior to the accident the appellant, American Automobile Insurance Company, issued to Wuorinen a policy of insurance insuring him 'against direct loss or expense arising or resulting from claims upon the assured for damages by reason of the ownership or maintenance of the automobile, * * * if such claims are made on account of bodily injuries or death accidentally suffered or alleged to have been suffered by any person or persons * * * as the result of an accident occurring while this policy is in force.' The policy provided that 'all rights hereunder are strictly personal to the assured named in this policy,' and contained, among others, the following clauses:

'3. Upon the occurrence of any loss or
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