Skut v. Hartford Acc. & Indem. Co.

• Decision Date: 31 May 1955
• Parties: Anthony SKUT, Administrator (Estate of Joseph Skut), v. The HARTFORD ACCIDENT and INDEMNITY COMPANY. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 681

114 A.2d 681

142 Conn. 388

Anthony SKUT, Administrator (Estate of Joseph Skut), v. The HARTFORD ACCIDENT and INDEMNITY COMPANY.

Supreme Court of Errors of Connecticut.

May 31, 1955.

Charles V. James, Norwich, with whom were J. Ronald Regnier and William R. Moller, Hartford, for appellant (defendant).

Morris H. Broder, Colchester, for appellee (plaintiff).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

INGLIS, Chief Justice.

In this action the plaintiff seeks to recover, on a public automobile liability policy issued on a car owned by Jennie Boardman, the amount of damages for the wrongful death of his decedent awarded in a former action against Emil Pugatch, the operator of the car. In that action, judgment for damages in a lesser amount was also awarded against Mrs. Boardman. This latter amount was paid by the present defendant and accepted by the plaintiff. The trial court in the case at bar rendered judgment for the plaintiff to recover the amount of the former judgment against Pugatch less the sum received in satisfaction of the judgment against Mrs. Boardman, and the defendant has appealed.

The court found the following facts: On December 8, 1945, Mrs. Boardman was the owner of a Buick sedan which was used by her and Samuel Boardman, her husband and partner, as a taxi for hire in Colchester. On that day the car was being operated by Emil Pugatch, and the plaintiff's decedent, Joseph Skut, was a passenger in it. Pugatch was then employed by the Boardmans as a taxi driver, and the actual use of the car by him at the time of the accident was with the permission of Mrs. Boardman. By reason of the negligence of Pugatch in the operation of the car, Skut was killed. In force at the time of the accident was an insurance policy issued by the defendant to Mrs. Boardman whereby the defendant agreed to pay on behalf of the insured all sums which the insured should become obligated to pay by reason of liability imposed upon her by law for damages because of bodily injury, including death, sustained by any person through accident and arising out of the ownership, maintenance or use of the Buick sedan. The policy provided that '[t]he unqualified word 'insured,' wherever used [in the policy] includes the named insured and * * * also includes any person * * * legally responsible for the use [of the automobile], provided the actual use of the automobile was with the permission of the named insured.'

The plaintiff, having been appointed administrator of the estate of Joseph Skut, brought suit in the Superior Court for New London County to recover for the wrongful death of his decedent from Jennie Boardman, Samuel Boardman and Pugatch. The present defendant provided counsel to defend the suit on behalf of Mr. and Mrs. Boardman but not on behalf of Pugatch. The Boardmans denied that Pugatch was their agent and that he had been operating the car with their permission. Pugatch was defaulted for failure to appear. The case against the Boardmans was tried to the jury, and the presentation of the evidence on that trial was treated as a hearing in damages to the court upon the default against Pugatch. On the issues between the plaintiff and Mrs. Boardman, including the issue of agency, the jury, on November 8, 1949, found for the plaintiff and assessed the damages he was entitled to recover of the Boardmans at $5000. The court, however, on the hearing in damages against Pugatch, found that the amount of the damages recoverable was $10,000. On November 8, 1949, judgment for $5000 and costs was entered on the verdict of the jury against the Boardmans, and on November 22, 1949, judgment was entered against Pugatch for $10,000 and costs. The Boardmans appealed to this court, but the judgment against them was affirmed. Skut v. Boardman, 137 Conn. 675, 680, 81 A.2d 110. No appeal was taken from the judgment against Pugatch. After the final determination of the case against the Boardmans, the present defendant paid the plaintiff the amount of the judgment against them, and the plaintiff delivered to the defendant a satisfaction of judgment in which he acknowledged receipt of $5000 damages and $216.16 costs. Included in the satisfaction of judgment was this reservation: '[I]t is further understood that the acceptance of said Five Thousand ($5,000.) Dollars and costs shall not be a waiver or a relinquishment of any right which the said Anthony Skut has or may have on the judgment rendered in said action against Emil Pugatch. * * *'

The court concluded that Pugatch was an insured under the terms of the policy issued by the defendant, that the judgment rendered against him in the former action was a valid judgment which had not been satisfied by the payment of the judgment against the Boardmans and that the defendant was liable to the plaintiff for the amount of the judgment against Pugatch, less the amount received in satisfaction of the judgment against the Boardmans.

This action was brought under § 6191 of the General Statutes, which reads in part as follows: 'Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment shall not be satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.' The three requisites of a cause of action under this statute are (1) that the plaintiff has recovered a final judgment; (2) that the judgment is against a person who was insured by the defendant against liability on it; and (3) that the judgment remains unsatisfied. The defendant contends on this appeal that none of these three elements was satisfied. The defendant's first argument is that the court was not warranted in concluding that Pugatch's liability was covered by its policy. Its next contention is that the judgment against the Boardmans in the former case would bar an action against Pugatch or at least would prevent an award of damages aginst Pugatch in excess of the damages awarded by the jury against the Boardmans. Finally, it claims that the payment of the judgment against the Boardmans operated to discharge in full the judgment against Pugatch.

The court concluded that Pugatch's liability to the plaintiff was covered by the policy. The correctness of that conclusion depends upon whether the court was warranted in finding that the actual operation of the car at the time the plaintiff's decedent was injured was with the permission of Mrs. Boardman. This latter finding is attacked by the assignment of errors. The evidence before the court on this subject was the same as the evidence on the former trial. In the former trial this evidence led the jury to the conclusion that at the time of the accident Pugatch was operating the car as the agent of the Boardmans and in the course of his employment by them as a taxi driver. It is, of course, true that this finding of agency in the former trial is not conclusive on the defendant in this case to establish coverage under its policy. Rochon v....