Brown v. Travelers Insurance Co.

[123]

McCOMB, J.

From a judgment sustaining a demurrer to plaintiffs’ complaint without leave to amend in an action to recover upon a public liability insurance policy, plaintiffs appeal.

The essential facts are:

Defendant issued a policy of public liability insurance covering an automobile belonging to the named assured. The policy extended coverage to those persons to whom the named assured gave permission either express or implied to drive the car, provided, -however, that the extended coverage should not apply where the automobile was being driven “by any person under the age of fourteen years, or by any person in violation of any state, federal or .provincial law as to age applicable to such person”.

Plaintiffs recovered a judgment against the named assured because of the negligence of the latter’s son, aged fourteen years and eleven months, in operating the automobile. At the time of the accident he did not have a license from the state of California to drive an automobile. Since defendant herein refused to pay the judgment against the assured, plaintiffs brought this suit against defendant, the insurance carrier, to recover the amount of the judgment.

This is the sole question to be determined:

Does a provision in a public liability automobile insurance policy to the effect that the policy does not apply where the automobile is being operated “by any person under the age of fourteen years, or by any person in violation of any state, federal or provincial law as to age applicable to such person’’ exclude liability in California where the automobile is being operated by an unlicensed person of the age of fourteen years and eleven months who, by reason of an exception in the general law as to age, may possess all of the qualifications to entitle him to a driver’s license?

This question must be answered in the affirmative. At the time of the accident here involved it was unlawful to drive an automobile without a license (sec. 250, Vehicle Code), and no license could lawfully be issued to any person under the age of sixteen, except that the motor vehicle department might issue a license to a minor between the ages of fourteen and sixteen where a statement was made by some person other