Opinion
Hearing Granted June 21, 1961.
Opinion vacated 15 Cal.Rptr. 897.
Gilbert, Thompson & Kelly, Los Angeles, and Jean Wunderlich, North Hollywood, for appellants.
Sanford I. Carter and Gerson Marks, Beverly Hills, for respondent.
FORD, Justice.
Exchange Casualty and Surety Co., a corporation, hereinafter designated as Exchange, brought an action in which a declaratory judgment was sought as to its obligations under a policy of automobile insurance issued by it in which the defendant James L. Scott was named as the person insured. The controversy arose out of the fact that Scott, while driving an automobile owned by the defendant O. N. Sebastian, caused the defendant Harold Lee Garmon to suffer certain personal injuries. Garmon and Sebastian each filed an answer. Garmon also filed a cross- Upon the trial of the matter, the court made findings of fact which may be summarized as follows: 1. On or about April 5, 1957, Exchange issued to Scott a liability insurance policy covering the operation of a 1949 Pontiac automobile. 2. On or about November 5, 1956, Standard issued to Sebastian a liability insurance policy covering the operation of a 1956 Chrysler automobile. 3. Both policies were in effect on April 11, 1957. 4. Garmon and Scott were employees of the Quick Way Car Wash in Inglewood, California, on April 11, 1957. 5. On the date last mentioned, Sebastian drove his Chrysler automobile to the place of business of Quick Way for the purpose of having it washed. 6. He left his car and departed on other business, being away about a half hour. 7. Scott entered the Chrysler automobile, after it had been washed, for the purpose of moving it away from the end of the wash rack; he backed it into the rear end of a Lincoln automobile upon which Garmon was working in a polishing shed; the Lincoln automobile was thrust forward and pinned Garmon against a wall, causing serious personal injuries to Garmon. 8. On July 15, 1957, Garmon filed an action against Scott and Sebastian, his claim against Sebastian being based upon the provisions of section 402 of the Vehicle Code as it then existed. 9. On January 30, 1959, judgment was entered in that action in favor of the plaintiff Garmon as against the defendant Scott for $17,500 as damages, together with costs, but in favor of defendant Sebastian as against the plaintiff Garmon; an appeal by the plaintiff from the judgment in favor of Sebastian was pending in the District Court of Appeal at the time of the making of findings of fact in the present case. 10. The policy issued by Standard provides that an 'additional insured' thereunder is a person who drives the automobile of the named insured with the latter's permission. 11. At the time and place of the accident, Scott was driving Sebastian's automobile with Sebastian's permission within the meaning of the terms of Standard's policy.
Section 402 of the Vehicle Code, as it then existed, was in part as follows: 'Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.' Now Vehicle Code 1959, § 17150.
As hereafter noted in this opinion, such judgment was affirmed on May 24, 1960; a petition for hearing was denied by the Superme Court on July 20, 1960. Garmon v. Sebastian, 181 Cal.App.2d 254, 5 Cal.Rptr. 101.
Since Exchange has not appealed from the judgment, references to some findings of fact and conclusions of law relating to Exchange's policy and liability are omitted. Moreover, some findings of fact and conclusions of law which relate to Standard's liability, but consideration of which is not essential to the determination of this appeal, are not summarized herein.
The conclusions of law reached by the court as to Standard's liability are in part as follows: 1. The judgment in favor of Sebastian in the case of Garmon v. Sebastian, an appeal from which was pending, 'is not res judicata of any of the issues in the present proceedings.' 2. Scott was driving Sebastian's automobile with Sebastian's permission within the meaning of the terms of Standard's policy. 3. Scott was an 'additional insured' within the meaning of the terms of Standard's policy. 4. Standard is liable to Garmon for the payment of the judgment for $17,500 and costs in his favor. Judgment was entered accordingly. From that judgment In affirming the judgment in favor of the defendant Sebastian in the case of Garmon v. Sebastian, after the entry of judgment in the present case, this court said (181 Cal.App.2d 254, at page 260, 5 Cal.Rptr. 101, at page 106): 'Under the evidence in this case the jury was not bound to find that the respondent had reason to anticipate that his car would be moved near the polishing enclosure. The trier of fact was justified in inferring that the only anticipated movement was over the distance from the end of the wash rack to the usual place of parking and that that was the only extent to which the owner consented that his vehicle might be driven by some employee of undetermined identity. What is a substantial deviation from a permitted use is a question of fact under the circumstances of each case. [Citations.] We cannot say that there was not substantial support in the evidence for the implied finding of the jury that the permission given by the respondent did not embrace driving the automobile to a point away from the usual place of paking cars freshly washed but that such permission was limited to such usual movement.' Accordingly, the question here presented is whether the determination in Garmon v. Sebastian that Scott was driving Sebastian's automobile without permission at the time Garmon was injured is in the nature of res judicata in the present case.
'Where two actions involving the same issue are pending at the same time, it is not the final judgment in the first suit, but the first final judgment, although it may be rendered in the second suit, that renders the issue res judicata in the other court. * * * Where the judgment in one suit becomes final through lapse of time or affirmance on appeal while an appeal is still pending in another court from judgment in the other action, the first final judgment may be brought to the attention of the court in which an appeal is still pending and relied on as res judicata.' Domestic & Foreign Petroleum Co. v. Long, 4 Cal.2d 547, at page 562, 51 P.2d 73, at page 80; see also, Haines v. Pigott, 174 Cal.App.2d 805, 807, 345 P.2d 339; Sewell v. Johnson, 165 Cal. 762, 770-771, 134 P. 704; 3 Witkin, California Procedure, p. 1935. Consequently, if the final determination of the issue of permission in Garmon v. Sebastian is conclusive with respect to the issue of permission as presented in the present case, this court may give recognition to the record of that related case. Cf. Hammell v. Britton, 19 Cal.2d 72, 75, 119 P.2d 333; City of Los Angeles v. Abbott, 217 Cal. 184, 192-193, 17 P.2d 993; Sewell v. Johnson, supra, 165 Cal. 762, 770-771, 134 P. 704; Watson v. Los Altos School Dist., 149 Cal.App.2d 768, 772, 308 P.2d 872; Muller v. Reagh, 148 Cal.App.2d 157, 161, 306 P.2d 593; Christiana v. Rose, 100 Cal.App.2d 46, 52-53, 222 P.2d 891.
The scope of the doctrine of res judicata is well established. It is, of course, clear that where the causes of action and the parties are the same, a prior judgment is a complete bar in the second action. While this aspect of the doctrine is not applicable in the present case, there is another phase thereof which is pertinent. In Sutphin v. Speik, 15 Cal.2d 195, at pages 201-202, 99 P.2d 652, at page 655, 101 P.2d 497, the Supreme Court stated: 'Second, where the causes of action are different but the parties are the same, the doctrine applies so as to render conclusive matters which were decided by the first judgment. As this court said in Todhunter v. Smith, 219 Cal. 690, 695, 28 P.2d 916, 918: 'A prior judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.'' See also, Taylor v. Hawkinson, 47 Cal.2d 893, 895-896, 306 P.2d Cf. Bonfils v. Pacific Auto. Ins. Co.,
Osborne v. Security Ins. Co., Stafford v. Yerge,We turn, then, to the question of whether the issue of permission in Garmon v. Sebastian coincided with the issue of permission in the present case. It is, of course, true that in the former case the application of the term to the facts was made in the sense in which it was used in section 402 of the Vehicle Code as then in effect, whereas in the present case the problem presented to the trial court revolved around its meaning as used in the contract of insurance. We need not determine whether there may be some situations where the meaning of the term with respect to imputed liability under the Vehicle Code differs from its meaning under the terms of a particular contract. See Norris v. Pacific Indemnity Co., 39 Cal.2d 420, 424, 247 P.2d 1. It appears to us that 'permission' as used in Standard's policy cannot reasonably be said to have a meaning different from 'permission' as used in section 402 of the Vehicle Code when viewed in the light of the factual situation common to both cases.
Support for the conclusion that the final judgment in Garmon v. Sebastian constitutes a conclusive determination of the issue of permission in the present case is found in the reasoning of the Court of Appeals of New York in Hinchey v. Sellers, 7 N.Y.2d 287, 197 N.Y.S.2d 129, 165 N.E.2d 156. In that case, administrators brought two separate actions to recover damages for the worngful deaths of their respective intestates resulting from an automobile accident in New York. In a prior suit in New Hampshire, the plaintiffs had sought declaratory relief against one O'Rourke, the driver of the vehicle in which their intestates were riding at the time of the accident, and against the insurer of the owners of the vehicle. Their contention therein was that it was the duty of such insurer to defend the actions against the driver then pending in New Hampshire; they based their position upon a clause in the policy which provided that any person using the automobile with the owner's permission was an additional insured. After the facts were found, including the facts that permission to use the car was given only with the understanding that O'Rourke would not be on the trip whereas O'Rourke did go thereon with the person to whom the car was lent and was actually driving at the time of the accident, the legal question of the existence of permission was certified to the Supereme Court of New Hampshire. That court determined that the driver was not driving the vehicle with permission within the meaning of the policy. Judgment that the insurer was not obligated to defend the actions against O'Rourke was rendered. Thereafter the plaintiffs commenced the New York actions against the co-owners of the automobile pursuant to the provisions of an owner's liability statute, alleging that the automobile was being operated at the time of the accident 'with the permission, express or implied,' of the owners. The defendants pleaded that the New Hampshire judgment was a conclusive determination of the issue of permissive use. The Appellate Division, 5 A.D.2d 440, 172 N.Y.S.2d 47, 51 reversed the ensuing judgment in favor of the defendant owners on two grounds: (1) The issue of permission under the insurance The Evergreens v. Nunan, 2 Cir.,
Evergreens v. Commissioner of Internal Revenue, Commissioners of State Ins. Fund v. Low,Since the issue of permissive use has been finally determined in the case of Garmon v. Sebastian the judgment in the present case cannot stand. The judgment is reversed with directions to the trial court to make findings of fact and draw conclusions of law which conform with the views herein expressed and thereupon to enter judgment in accordance therewith
SHINN, P.J., and VALLEE, J., concur.