Trinity Universal Ins. Co. v. Willrich

• Decision Date: 18 April 1942
• Docket Number: 28505.
• Citation: 124 P.2d 950,13 Wn.2d 263
• Court: Washington Supreme Court
• Parties: TRINITY UNIVERSAL INS. CO. v. WILLRICH et al.

124 P.2d 950

13 Wn.2d 263

TRINITY UNIVERSAL INS. CO. v. WILLRICH et al.

No. 28505.

Supreme Court of Washington

April 18, 1942

Department 1.

Action by the Trinity Universal Insurance Company against Carl A Willrich and others for a declaratory judgment determining rights and liabilities under an automobile liability policy. From a judgment for plaintiff, defendants Mary Gorc, Jerry Krashovetz and Frank Krashovetz appeal.

Affirmed.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Adoll B. Englund, of Enumclaw, and Harry S. Redpath, of Seattle for appellants.

Whittemore & Truscott and Arthur L. Haugan, all of Seattle, for respondent.

STEINERT Justice.

Plaintiff instituted this action under the uniform declaratory judgments act, seeking adjudication of its rights and liabilities arising out of an automobile liability insurance policy issued by it to defendant Carl A. Willrich. It joined as additional defendants certain other persons who at the time were claiming damages from Willrich for injuries and loss sustained by them in a vehicular collision in which a truck owned and operated by Willrich was involved. The trial court made findings upon which it entered judgment declaring that the insurance policy was of no force or effect at the time of the accident. The defendants who were claiming damages against Willrich have appealed from the declaratory judgment; Willrich, the insured, however, has taken no appeal.

On November 10, 1939, the respondent insurance company issued to defendant Carl A. Willrich its casualty insurance policy affording certain specified coverages. The insuring agreement obligated respondent to pay, on behalf of the insured, all sums which the latter should be held to pay by reason of liability imposed upon him by law for damages because of injury, to person, or property arising out of the ownership, maintenance, or use of a certain Ford truck. Willrich's address, as stated in the policy, was Marblemount, Washington.

The insurance policy was to run for a period of one year from its date, or until November 10, 1940. The important provision in the policy, so far as the issues here involved are concerned, is the cancellation clause, which was specifically made one of the conditions of the contract. It reads in part as follows: 'Cancellation. This policy may be cancelled by the Named Insured by mailing written notice to the Company stating when thereafter such cancellation shall be effective, in which case the Company shall, upon demand, refund the excess of premium paid by such Insured above the customary short rate premium for the expired term. This Policy may be cancelled by the Company by mailing written notice to the Named Insured at the address shown in this policy stating when not less than five days thereafter such cancellation shall be effective, and upon demand the Company shall refund the excess of premium paid by such Insured above the pro rata premium for the expired term. The mailing of notice as aforesaid shall be sufficient proof of notice and the insurance under this policy as aforesaid shall end on the effective date and hour of cancellation stated in the notice.' We are in this case concerned only with the provision having reference to notice of cancellation to be given by the company.

On July 1, 1940, respondent's general agent in Seattle, having received information to the effect that Willrich was not a careful and responsible driver, mailed to him at Marblemount, Washington, which was the address stated in the policy, a written notice of cancellation thereof, effective midnight July 8, 1940. At the time of mailing the notice, respondent's agent obtained from the postoffice a slip acknowledging receipt of 'one piece of ordinary mail addressed to Mr. C. A. Willrich, Marblemount, Wn.' Although there is no dispute at to the fact that the notice was mailed, Willrich testified, and the trial court found, that he did not actually receive the notice. No question is here raised concerning refund to Willrich of the unearned premium, and the proof is that it was duly forwarded by respondent's agent in the usual course of its business a short time after the notice of cancellation was mailed.

On July 23, 1940, which was after the effective date of cancellation specified in the written notice referred to above, Willrich, while operating the truck covered by the policy here in question, collided with an automobile owned by Frank Krashovetz and occupied by Mary Gorc and Jerry Krashovetz. In that collision Mrs. Willrich was killed, Mary Gorc and Jerry Krashovetz were seriously injured, and the Krashovetz automobile was badly damaged. Mary Gorc, with whom was joined her husband (since deceased), and Frank and Jerry Krashovetz subsequently instituted a joint action against Willrich to recover damages for the injuries and loss sustained by them. Willrich thereupon tendered the defense of that action to respondent, with demand for protection under the terms of his insurance policy. Respondent accepted the defense, but only after entering into a written non-waiver agreement with Willrich expressly reserving respondent's right to contest the validity and further existence of the policy after July 8, 1940, to institute declaratory judgment proceedings for the purpose of determining its rights and liabilities under the contract of insurance, and to withdraw from the defense of the damage action at any time it might choose to do so.

Respondent then instituted this action to obtain a declaratory judgment with reference to its rights and liabilities under the policy and at about the same time procured from the plaintiffs in the damage action, appellants herein, a stipulation that the trial of their action against Willrich might be delayed until the present cause should be finally determined.

The first question to be decided on this appeal is whether the trial court had jurisdiction to entertain this proceeding for a declaratory judgment inasmuch as the case involves not merely questions of law but a question of fact as well. Appellants contend that this is not a proper case for a declaratory judgment action, because it was necessary for the court to determine that the notice of cancellation was actually mailed Before it could pass upon the legal sufficiency of such notice when not received by the insured. The fact of mailing, be it noted, was incontrovertibly established by the evidence.

The uniform declaratory judgments act of this state, Rem.Rev.Stat.Supp. § 784-1 to § 784-17, provides, so far as is material here, as follows:

'Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. An action or proceeding shall not be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.' Rem.Rev.Stat.Supp. § 784-1.

'A person interested under a * * * written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a * * * contract * * * may have determined any question of construction or validity arising under the * * * contract * * * and obtain a declaration of rights, status or other legal relations thereunder.' Rem.Rev.Stat.Supp. § 784-2.

'When a proceeding under this act involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions, in the court in which the proceeding is pending.' Rem.Rev.Stat.Supp. § 784-9.

'This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.' Rem.Rev.Stat.Supp. § 784-12.

It is clear from these sections of the statute, particularly § 784-9, that the act contemplates that in an action for the declaration of rights, status, and other legal relations questions of fact may be contemporaneously determined. It is now a generally accepted principle of law throughout the United States that, in such actions, the courts have the power to determine questions of fact when necessary or incidental to the declaration of legal relations. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000, rehearing denied 300 U.S. 687, 57 S.Ct. 667, 81 L.Ed. 889; Associated Indemnity Corporation v. Manning, 9 Cir., 92 F.2d 168; Dunleer Co. v. Minter Homes Corporation, D.C., S.D. W.Va., 33 F.Supp. 242; Tolle v. Struve, 124 Cal.App. 263, 12 P.2d 61; Herrlein v. Tocchini, 128 Cal.App. 612, 18 P.2d 73; R. G. Hamilton Corporation v. Corum, 218 Cal. 92, 21 P.2d 413; Zimmer v. Gorelnik, 42 Cal.App.2d 440, 109 P.2d 34; Supreme Tent of the Knights of the Maccabees v. Dupriest, 235 Ky. 46, 29 S.W.2d 599; City of Muskegon Heights v. Danigelis, 253 Mich. 260, 235 N.W. 83, 73 A.L.R. 696; Faulkner v. Keene, 85 N.H. 147, 155 A. 195; Honetsky v. Russian Consolidated Mutual Aid Society of America, Sup., 114 N.J.L. 240, 176 A. 670; National Liberty Insurance Co. of America v. Silva, 43 N.M. 283, 92 P.2d 161; Loesch v. Manhattan Life Insurance Co., Sup., 128 Misc. 232, 218 N.Y.S. 412, affirmed without opinion 220 A.D. 828, 222 N.Y.S. 845; Town Board of Greece v. Murray, Sup., 130 Misc. 55, 223 N.Y.S. 606; Dun & Bradstreet, Inc., v. City of New York, Sup., 168 Misc. 215, 5 N.Y.S.2d 597; Kariher's Petition, 284 Pa. 455, 131 A. 265; Holly Sugar Corporation v. Fritzler, 42 Wyo. 446, 296 P. 206; Borchard, Declaratory...