[No. 35130. En Banc. Supreme Court August 25, 1960.]
DALLAS W. FOOTE et al., Appellants, v. J. F. GRANT et al.,
Defendants.
DALLAS L. FOOTE et al., Appellants, v. J. F. GRANT et al.,
Defendants, NATIONAL SURETY MARINE INSURANCE
CORPORATION, Respondent.«1»
[1] APPEAL AND ERROR - REVIEW - SUBSEQUENT APPEALS - QUESTIONS CONCLUDED - MATTERS DETERMINED ON PRIOR APPEAL. A prior decision of the Supreme Court that the driver of an automobile belonging to a used car dealer was not acting within the scope of his employment at the time and place of an automobile accident, was res judicata, in a subsequent appeal involving the same subject matter, of a proposition that the driver was an "employee acting within the scope of his duties," as that term was used in the omnibus clause of a liability insurance policy held by the dealer; but was not res judicata of the question as to whether the "actual use" by the driver was with the "permission" of the insured, as those terms were used in the omnibus clause.
[2] INSURANCE - LIABILITY INSURANCE - PERSONS COVERED - PERMISSIVE USE OF AUTOMOBILE BY OWNER - IMMATERIAL OR PERMISSIBLE DEVIATION. A deviation beyond the letter, but within the spirit, of express or implied permission to use an automobile given by the named insured in an automobile liability insurance policy, is within the "omnibus clause" in such a policy, providing that the word "insured," includes one using the automobile with the permission of the named insured.
«1» Reported in 354 P. (2d) 893.
Aug. 1960] FOOTE v. GRANT. 631
[3] SAME - EXPRESS OR IMPLIED PERMISSION TO DEVIATE - WHAT CONSTITUTES. A deviation to an ocean beach, off of any route, to the city of destination was not within the express or implied permission given to the driver of an automobile by the owner, the insured, within the meaning of an omnibus clause in an insurance policy, where the driver, taking possession of the car to drive from one city to another, had signed an agreement that any deviation from the routes designated, other than for normal road detours, would be deemed a conversion and subject the driver to prosecution.
[4] SAME - EXPRESS OR IMPLIED PERMISSION TO DEVIATE - EVIDENCE -SUFFICIENCY. In such a case, the driver of the automobile could not establish blanket permission to deviate from the route specified in the agreement by his own testimony that a person, through whom he had gained possession of the automobile, had told him that the route he took did not make any difference, so long as he did not drive over a specified number of miles and arrived in the city where the dealer's business was located by a specific date, since an agent's authority, express or apparent, cannot be proved by the statements or actions of the agent, but only by those of the principal.
FOSTER, FINLEY, and HUNTER, JJ., dissent.
Appeal from a judgment of the Superior Court for Pierce county, No. 132659, Bartlett Rummel, J., entered December 15, 1958, upon granting a motion by the defendants for summary judgment, dismissing a writ of garnishment. Affirmed.
E. K. Murray & E. M. Murray, and H. Frank Stubbs, for appellants.
Rosling, Williams, Lanza & Kastner, Joseph J. Lanza, and Paul C. Gibbs, for respondent.
HILL, J. -
The issue on this appeal is whether the driver of an automobile, who was responsible for a collision, was driving it with the permission of the owner, express or implied, at the time of the collision.
The Footes sustained injuries in consequence of the negligence of Oscar John Wernegreen who was driving a car belonging to J. F. Grant, from Chicago to Seattle. (For a more detailed statement of the facts and circumstances, see the opinion in Foote v. Grant (1960), 55 Wn. (2d) 797, 350 P. (2d) 870.) They secured default judgments against Wernegreen totalling $31,850; but the jury
[3] See Ann. 5 A. L. R. (2d) 622, 626-643; Am. Jur., Automobile Insurance, § 98.
632 FOOTE v. GRANT. [56 Wn. (2d)
returned a verdict in favor of the defendant, J. F. Grant. That verdict we affirmed in Foote v. Grant, supra, holding that the principle of respondeat superior was not applicable; that Grant was not liable since Wernegreen was on "a frolic of his own," was not within the scope of his employment, and was in no way furthering the interests of Grant at the time and place of the collision.
Grant, however, had a liability insurance policy with the respondent, National Surety Marine Insurance Corporation, under which coverage was extended not only to the named insured (J. F. Grant), but also to any "employee" while "acting within the scope of his duties as such," and "any person" while using the automobile covered by the policy, "provided the actual use of the automobile is by the named insured or with his permission." This is usually referred to as an "omnibus clause."
The Footes obtained a writ of garnishment directed to the insurance company. It answered, denying liability to the defendant Wernegreen for the judgments obtained against him. The answer was controverted by the Footes who contended that Wernegreen was an additional insured under Grant's policy. On an application for summary judgment, the writ of garnishment was dismissed. The Footes appeal.
[1] Our decision in Foote v. Grant, supra, is res judicata of the proposition that Wernegreen was not an employee "acting within the scope of his employment." However, we made it clear that the "omnibus clause" or "permissive use" provision might extend the insurance coverage beyond the limitations that would otherwise exist under the law of principal and agent. (Hamm v. Camerota, Sr. (1955), 48 Wn. (2d) 34, 290 P. (2d) 713; Vezolles v. Home Indemcity Co. (1941), 38 F. Supp. 455.)
In Wallin v. Knudtson (1955), 46 Wn. (2d) 80, 278 P. (2d) 344, we pointed out the three classifications into which the cases fall where the issue has been whether the actual use of an automobile, at the time of collision, was with the permission, express or implied, of the named insured. It seems unnecessary to cover that ground again.
Aug. 1960] FOOTE v. GRANT. 633
Appellants ask us to adopt the so-called liberal rule and to
". . . follow the authorities which adopt the principle that an original permission to use the car includes any use thereafter made of the vehicle." Yurick v. McElroy (1949), 32 Wn. (2d) 511, 525, 202 P. (2d) 464. We specifically rejected this construction of the "omnibus clause" in Yurick v. McElroy, supra. A majority of the court still adheres to that rejection.
[2] We have, in Wallin v. Knudtson, supra, and other cases, applied the immaterial or permissible deviation rule which permits a deviation beyond the letter but within the spirit of the express or implied permission to the use of the car given by the named insured.
The appellants, seeking to come within that rule, cite the Wallin case, but it is readily distinguishable. There the permission to use the car was for the accommodation of a comrade-in-arms for social purposes, and, as we indicated, a general or comprehensive permission is much more readily to be assumed where the use of the car is for social or nonbusiness purposes. Jordan v. Shelby Mut. Plate Glass & Cas. Co. (1943), 51 F. Supp. 240, 242; affirmed 142 F. (2d) 52.
[3] In the present case, the named insured was a used car dealer, and the object of the used car being delivered to Wernegreen in Chicago was to have it driven to Seattle for purposes of resale. Wernegreen signed an agreement, on taking possession of the car, which designated certain routes (additional routes had been added to those originally designated to permit him to travel through Yellowstone National Park and Portland, Oregon), and provided that any deviation from those routes "other than for normal road detours" would be deemed a conversion of the vehicle and subject him to prosecution.
Wernegreen's deviation at Kelso from the designated route, highway No. 99 (a direct four-lane highway from Portland north to Seattle), to go west down the Columbia river highway and thence north along the coast to
634 FOOTE v. GRANT. [56 Wn. (2d)
Aberdeen, was not a "normal road detour," but, as indicated in Foote v. Grant, supra, it was at least a route to Seattle. The further deviation to Hoquiam and the ocean beaches (and it was while returning from this deviation that the collision occurred) was certainly not on any route to Seattle, and was not within any express or implied permission from the named insured.
[4] The appellants rely heavily on Wernegreen's testimony that someone (he did not know who) at the driveaway service, through which he secured possession of the car, had told him that the route did not make any difference so long as he did not go over twenty-five hundred miles and arrived in Seattle by August the 30th.
This claimed blanket permission to wander all over the countryside, while driving Grant's car to Seattle, had to come from the named insured, i.e., Grant or Grant's agent (concededly it did not come from Grant). It is axiomatic that an agent's authority, express or apparent, cannot be proved by the statements or actions of the agent, but only by those of the principal. Codd v. New York Underwriters Ins. Co. (1943), 19 Wn. (2d) 671, 680, 144 P. (2d) 234.
We have but recently considered the right to rely on an agent's claimed apparent authority, based solely on his own representations, to vary the form of a written contract put out by his principal. Haagen v. Landeis (1960), ante p. 289, 352 P. (2d) 636.
We find no apparent authority for this unknown man to act for Grant, in authorizing Wernegreen to disregard the designated routes in his signed agreement and to travel anywhere he pleased just so he did not go over twenty-five hundred miles between Chicago and Seattle.
The trial court correctly held that Wernegreen was not driving Grant's automobile with his permission, express or implied, at the time and place of the collision in which the appellants sustained their injuries; and the summary judgment in favor of the respondent is affirmed.
Aug. 1960] MUSCATEL v. STOREY. 635
WEAVER, C. J., MALLERY, DONWORTH, ROSELLINI, and OTT, JJ., concur.
FOSTER, J. (dissenting) - I dissent for the reasons stated in my dissenting opinion in Foote v. Grant, 55 Wn. (2d) 797, 803, 350 P. (2d) 870.
FINLEY, J., concurs with FOSTER, J.
HUNTER, J. (dissenting) - I dissent for the reasons expressed by Judge Finley in his dissent in Foote v. Grant, 55 Wn. (2d) 797, 810, 350 P. (2d) 870, to which I concurred.