Smith v. Western Casualty & Surety Co.

DOOLING, J. pro tem.

Plaintiffs appeal from a judgment in favor of defendant in an action to recover upon a policy issued by defendant to Bank of America National Trust and Savings Association (hereinafter called the bank) as administrator of 'the estate of J. E. Funk, deceased, and insuring against liability for damages from the operation of certain automobiles belonging to said estate. The policy was issued on July 27, 1935. Among the automobiles covered by this policy was a De Soto sedan. After proceedings regularly had the probate court on December 26, 1935, made an order confirming the sale of this De Soto sedan to Mrs. J. E. Funk and pursuant to this order in January, 1936, the certificate of ownership of the sedan properly endorsed was delivered to Mrs. Funk. Mrs. Funk left this certificate at the office of the California Highway Patrol in San Andreas to be forwarded to the office of the Motor Vehicle Department for the issuance of a new certificate to her some time in January, 1936, but for some reason the certificate was not received in the Sacramento office until June 5, 1936, and a certificate of ownership was not issued to Mrs. Funk until June 16, 1936. In the meantime and on May 10, 1936, the automobile, while operated by one Dan Morotti with the consent of Mrs. Funk, collided with another automobile causing the injuries to plaintiffs herein and plaintiffs thereafter recovered judgment for damages against Morotti and Mrs. Funk by reason of such injuries. Plaintiffs then brought the present action upon the policy of insurance above mentioned.

The policy contained among others, the following provisions :

“(J) In the event any automobile covered hereunder is sold, transferred or assigned, this Policy shall not inure to the benefit of the purchaser, transferee or assignee, except by the consent of the Company endorsed hereon; and no assignment of interest hereunder shall bind the Company, unless the consent of the Company shall be endorsed hereon. ’ ’

“Additional Assureds

“The insurance provided by this Policy shall be available,

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in the same manner and under the same conditions as it is available to the named assured, to any person operating, and/or any other person, while riding in, and/or to any other person, firm or corporation legally responsible for the operation, of any of the automobiles described in the Schedule of Statements, provided such use or operation is lawful and with the permission of the named Assured, . . . provided that (a) no person, firm or corporation to whom the automobile described herein has been sold, transferred, or assigned by the named Assured, shall be entitled to recover hereunder, unless this Policy is transferred or assigned in accordance with Condition J. hereof. ...”