EDMONDS, J., Dissenting. In my judgment, the decision holding the insurer liable is based upon an erroneous construction of the contract between the parties. Moreover, it passes over, as unnecessary for determination, the question whether the named insured was the sole and unconditional owner of the automobile at the time of the accident which occasioned the present litigation. In effect, the court holds that regardless of the insurer’s contract that it will pay the named insured’s obligations only so long as the specified ownership continues, it is liable under a supplemental agreement which was made subject to all the terms, conditions and limitations of the policy.
The endorsement provides that “the insurance granted to the named insured . . . and subject to all the terms, conditions and limitations of the policy shall also inure to the benefit of any person or persons while riding in or legally operating the automobile described herein and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named insured”. By this addition to the policy the insurer extended the original coverage to include persons other than the insured; that is to say, so long as the policy was in effect “and subject to all the terms, conditions and limitations” of the contract, the insurer agreed to indemnify any third person driving the automobile or responsible for its operation with the permission of the named insured. As stated by the appellant in its letter transmitting the endorsement, it “provides for the extension of insurance under your policy to others who may be [30]driving your car (with your permission) and gives to them all the protection afforded you by your policy”.
The two insuring agreements are separate and distinct provisions embodied in the one contract. By the policy as originally written the named insured was the only person insured against loss. Under the endorsement the insurance was extended to protect any unnamed person using the automobile or being responsible for its operation under specific conditions. It provided that the insurance granted to the named insured should also “inure to the benefit of” certain other persons, or, in other words, that such insurance should devolve by law as a right and be available to anyone who came within the specific conditions. But it gave the named insured no rights which he did not have before and the added protection was" specifically made “subject to all the terms, conditions and limitations of the policy ’ ’.
It is this provision of the omnibus clause which distinguishes the present case from Firkins v. Zurich General Acc. & L. Co., 111 Cal. App. 655 [295 Pac. 1051]. There was no dispute presented by that case concerning who was insured at the time of the accident, but the controversy was whether the judgment creditor of the named insured could recover against the insurer because of an accident which occurred when the insured’s automobile was driven by a fourteen-year-old boy. The policy excluded coverage when the automobile was driven by any person under sixteen years of age. By the endorsement coverage was extended to “any person” using it with the permission of the named insured. It was held that this provision made the insurer liable to the plaintiff because at the time of the accident the automobile was being operated with the insured’s consent.
The action of Swift v. Zurich General Acc. & L. Ins. Co., 112 Cal. App. 709 [297 Pac. 578], was brought by a named insured, against whom judgment had been rendered, against the insurer. The policy included an endorsement identical with the one before the court in the Firkins case. It was held that the insured might recover the amount of the judgment which was awarded because of an accident in which a minor was driving the automobile with her consent, notwithstanding the age limitation. The recovery was not upon the extended coverage agreement but Under the [31]ordinary policy terms. Because of statutory provisions, the insured was liable for the damages resulting from a collision which occurred while the automobile was driven by a minor with her consent, and the court held that the provision limiting coverage to persons under sixteen years of age had been superseded by the endorsement which extended insurance to any person without restriction.
It is difficult to see the logic of this reasoning. Had the judgment been against the minor driver, as the endorsement applied to “any person” without limitation as to age, then he could recover against the insurer. But the court measured the liability of the insurer to the insured by reading into the terms of the contract under which it agreed to protect him, provisions concerning insurance granted to a third person, one driving the automobile with the consent of the insured.
However, that presents a situation entirely different from that of the plaintiff in the present case who must recover if at all as a person insured by the omnibus clause but not by the policy. Here there is no inconsistency or ambiguity between the two insuring agreements. “Where the terms are plain and explicit and the meaning clear, courts indulge in no forced construction in order to cast a liability upon the insurer which it has not assumed.” (14 Cal. Jur. 446; Maryland Cas. Co. v. Industrial Acc. Com., 209 Cal 394, 395 [287 Pac. 468].)
When the accident happened, Votaw was not riding in or legally operating the automobile with the consent of the named insured; it was Kin who was doing this. Under these circumstances, if the policy was then in effect Votaw was covered as the insured named in it and the extended coverage protected Kin, the driver of the car. Reading the policy of insurance and the endorsement together, it seems obvious that the same person could not be the insured under both agreements, nor could a person insured under one claim the protection afforded by the other.
On the other hand, it seems clear that the insurance was not in effect after Votaw sold his automobile to Kin. The California Vehicle Act (Stats. 1923, p. 517, as amended), in effect at that time, required that within ten days after a transfer of the title or interest of a legal owner in or to a registered automobile, the certificate of ownership be for[32]warded to the division of motor vehicles; thereupon the division “shall issue to the owner and legal owner entitled thereto, by reason of such transfer, a new certificate of registration and certificate of ownership respectively . . . Until said division shall have issued said new certificate of registration and certificate of ownership as hereinbefore in subdivision (d) provided, delivery of such vehicle shall be deemed not to have been made and title thereto shall be deemed not to have passed and said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose.”
This section does not purport to limit or restrict the ownership of an automobile. One may have record title to property and not be its owner; likewise, transfer of the legal title to property may not have any effect upon the ownership. The statute expressly recognizes this distinction in providing for a “certificate of registration” to the “owner” and a “certificate of ownership” to the “legal owner”, and affects only the legal title to an automobile as distinguished from equitable ownership of it. (See Sly v. American Ind. Co., 127 Cal. App. 202, 207 [15 Pac. (2d) 522] ; Swing v. Lingo, 129 Cal. App. 518 [19 Pac. (2d) 56] ; Kenny v. Christianson, 200 Cal. 419 [253 Pac. 715, 50 A. L. R. 1297] ; Pendell v. Thomas, 95 Cal. App. 33 [272 Pac. 306]; Goodman v. Anglo Cal. T. Co., 62 Cal. App. 702 [217 Pac. 1078] ; 23 California Law Review, 557, 562.) Therefore, although by Mr. Votaw’s failure to comply with the provisions of the California Vehicle Act, supra, the legal title remained in him, yet Mr. Kin acquired an interest in it which, according to the law as I read it, relieved the insurer from liability under its contract in the circumstance shown in this case.
The respondent lays great stress upon the statement in the insurer’s letter concerning the endorsement that it “provides for compliance with the Owner’s Responsibility Laws of the various states in which the exchange operates, or in which you may be traveling at the time of an accident involving your insured car”. This comment is not an insuring agreement and may not be construed accordingly. If it may properly be considered for any purpose it adds nothing to the plaintiff’s cause of action.
In California the owner of an automobile is liable for the death or injury of a person or for damage to property oc[33]easioned by any person using it with the permission, express or implied, of such owner. (Sec. 171414 Civ. Code, now Vehicle Code, sec. 402.) Under this statute, which is substantially the same as those of many other states, responsibility is limited to the amount of five thousand dollars for the death of or injury to one person in any one accident. It also provides “that in any action against an owner on account of imputed negligence as imposed by this section, the operator of said vehicle whose negligence is imputed to the owner shall be made a party defendant provided personal service of process can be had upon said operator within this state, and upon recovery of judgment, recourse shall first be had against the property of said operator so served”.
Under this statute the operator remains primarily liable for all damages suffered as a result of his negligence. The owner has a limited responsibility, which is secondary in the sense that execution of a judgment shall first be levied upon the property of the operator. The ability of the operator whom an owner has allowed to drive his car to respond in damages is, therefore, of much interest to the owner in many ways. Undoubtedly, the desire of owners to make certain that any persons to whom they entrust their automobiles have insurance coverage in their own right leads insurers to adopt the omnibus clause as a standard form. By a policy containing that clause the owner has provided insurance protecting any person driving his automobile with his permission. With such a contract in force, he has complied with the statute by making certain that recourse may be successfully had upon the operator for any judgment rendered in an action for damages suffered by reason of the operator’s negligence.
According to these views the judgment should be reversed with directions to enter judgment for the defendant.