Sills v. Sorenson

• Decision Date: 22 November 1937
• Docket Number: 26628.
• Citation: Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798 (Wash. 1937)
• Court: Washington Supreme Court
• Parties: SILLS et ux. v. SORENSON (FIREMAN'S FUND INDEMNITY CO., Garnishee.

73 P.2d 798

192 Wash. 318

SILLS et ux. v. SORENSON (FIREMAN'S FUND INDEMNITY CO., Garnishee.

No. 26628.

Supreme Court of Washington, En Banc.

November 22, 1937

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by Jackson W. Sills and Mary M. Sills, his wife, against John W. Sorenson, wherein the Firemen's Fund Indemnity Company was garnished.From a judgment for the garnishee, the plaintiffs appeal.

Reversed with direction.

Vanderveer & Bassett and Anson B. Jackson, Jr., all of Seattle, for appellants.

Whittemore & Truscott, of Seattle, for respondent.

STEINERT Chief Justice.

This is an appeal from a judgment dismissing a writ of garnishment based on a prior judgment rendered in an action brought by plaintiffs against the principal defendant to recover damages for personal injuries sustained in an automobile accident.

The facts out of which the original controversy arose are as follows: On and prior to February 1, 1936, appellantJackson W. Sills was shop foreman in the employ of Frayn Printing Company of Seattle.At the same time defendantJohn W Sorenson worked as a printer in the shop, under the supervision of Sills.Both men had been engaged in the printing trade for many years and were dependent for their livelihood upon that occupation.

On August 3, 1935, Sorenson had procured from Firemen's Fund Indemnity Company, respondent herein, a liability policy covering a Plymouth coupé then owned by him.The policy specified on its face that 'The Named Assured's business or occupation is Employee--Frayn Printing Co.'

By the terms of the Policy respondent agreed to pay, within specified limits, any loss by reason of the liability imposed by law upon the assured, Sorenson, arising out of bodily injuries received by any person except those designated in the subsequent 'Exclusions' clause.

The exclusions clause, in so far as it is material here, reads as follows: 'Provided also * * * (2) that the Company shall not be liable on account of bodily injuries or death suffered by any employee of the Assured * * * injured in the course of employment in the business of the Assured. * * *'(Italics ours.)

Thus according to the terms of the policy, respondent agreed to pay certain losses sustained by the assured, Sorenson, by reason of bodily injuries received by any third person other than an employee of Sorenson injured in the course of his employment in the business of the assured.The question here presented is whether Sills comes within the designation of an employee of Sorenson, and, if so, whether he was injured in the course of his employment 'in the business' of Sorenson.It is conceded that, if for any reason Sills does not come within that designation in the exclusions clause, respondent would be liable under the terms of its policy issued to Sorenson and would be subject to garnishment on the judgment obtained by Sills.

It appears from the evidence that, a short time prior to February 1, 1936, Sorenson had been sued upon a dental bill by a resident of Marysville, which is about 35 miles north of Seattle.Following the commencement of that action, a writ of garnishment was issued against Sorenson's employer, Frayn Printing Company.Sorenson was anxious to settle the controversy, obtain a dismissal of the garnishment, and have his wages released.For some reason or other he desired to have a witness present at the time of his settlement with the dentist.

Accordingly, on the morning of February 1, which was Saturday and a half holiday, Sorenson requested Sills, who was the superintendent of the shop, to accompany him, in Sorenson's car, to Marysville that afternoon for the purpose of witnessing the payment of the dental bill.Sills was at first reluctant to go, but, on Sorenson's offer to pay him $2 to make the trip, agreed to do so.The understanding was that Sorenson was to drive his Plymouth coupé, with Sills accompanying him, to Marysville, and, after the transaction there had been completed, to bring Sills back to Seattle.The evidence discloses that Sills had never, prior to that occasion, been in the employ of Sorenson, nor performed any services whatever for him for compensation.

After Sorenson had paid Sills the sum of $2, as agreed, the trip was made as contemplated, and the dental bill was paid and receipted for in Sills' presence.

On the return trip, and just Before reaching Seattle, the automobile driven by Sorenson ran off the highway and struck a telephone pole, as a result of which Sills was severely injured.Sills subsequently brought an action for damages against Sorenson upon the charge that his injuries had been caused by reason of Sorenson's reckless and negligent driving, continued after repeated remonstrances by Sills.

Much of respondent's argument in its brief is predicated upon the following allegations contained in Sills' complaint against Sorenson: 'That, on the 1st day of February, 1936, defendant[Sorenson] * * * employed said plaintiff Sills for said purpose, paying to said plaintiff Sills the sum of $2.00 therefor.'(Italics ours.)

And: 'That, pursuant to said request and employment said plaintiff Sills did accompany the defendant in his said automobile to said Town of Marysville and did there witness the payment by defendant of said bill. * * *'(Italics ours.)

It is contended by respondent that these allegations in the complaint are to be taken as admissions, or at least as proof, in the garnishment proceeding, that Sills was an 'employee' of Sorenson, and, therefore within the exclusions clause of the policy.

It is apparent that these allegations, if sustained by the evidence, would avoid the interdiction of the host and guest statute passed in 1933, Rem.Rev.Stat. § 6297-1(Laws 1933, p. 145, § 1).However, we are not now concerned with the purpose of these allegations, nor is the question of their truth or falsity a present issue.We are concerned only with their legal effect in the determination of the nature of the 'employment' undertaken by Sills.

Upon the commencement of the original action by Sills, Sorenson tendered the defense to respondent.The defense was accepted, on condition, however, that all rights under the policy were fully reserved by both parties.Upon trial of the action, by jury, a verdict was returned for Sills, upon which a judgment was entered.That judgment has become final and binding upon the parties to the main action.

Immediately upon entry of the judgment, Sills, as plaintiff, sued out a writ of garnishment against the respondent insurance company.Respondent answered by general denial.After issues had been joined in the garnishment proceeding, a hearing was had Before the court, pursuant to which the court made findings and concluded therefrom that, at the time of sustaining his injuries, Sills was an employee of Sorenson and was injured in the course of his employment in the business of Sorenson, and that therefore respondent was relieved of liability by the terms of the exclusions clause of the policy.From a judgment on the findings and conclusions, this appeal was taken.

It will readily be seen that, to give controlling effect to the exclusions clause so as to defeat recovery herein by Sills, three things are necessary: (1) Sills must have been an employee of Sorenson at the time of the accident; (2)he must been injured in the course of his employment; and (3) his employment must have been in the business of Sorenson.If any one or more of these elements be lacking, the respondent insurance company must be held liable under its policy.

We proceed from the well-established and oft-repeated principle in the law of insurance that, if the policy be so drawn as to require interpretation and its language is fairly susceptible of different conclusions, that construction which is the most favorable to the assured in affording him protection under the policy will be adopted.Guaranty Trust Co. v Continental Life Ins. Co.,159 Wash....