Wisdom v. Eagle Star Insurance

DEVINE, J.

Plaintiffs, appellants, are husband and wife, John and Hermain Wisdom, and their son Bobbie Lee Wisdom and they have brought this action against an insurance company which had issued an automobile garage liability policy to plaintiff John Wisdom. During the effective period of the policy, on August 9, 1958, Bobbie Lee Wisdom, then a minor, drove an automobile which became involved in an accident in which persons named Moore and Vierra were injured. The automobile driven by Bobbie was not owned by the Wisdoms, but by Virgil Scott, who is not a party to this case. There is no allegation that the son was agent of his parents at the time. The Wisdoms, father and mother, had signed a driver’s license application for their son. The injured persons brought an action against all of the Wisdoms. Demand was made upon defendant herein to provide defense, but it refused to do so. Judgments totaling $18,732.50 were awarded to the injured parties against Bobbie Lee Wisdom, and judgment against the senior Wisdoms in amount $10,000, as the maximum allowable for injuries to more than one person by imputed liability because of signing the application, under Vehicle Code section 17709.

[604]

Demurrer to plaintiffs’ complaint on the insurance policy was sustained with leave to amend, plaintiffs declined to amend, judgment for defendant was entered, and from this plaintiffs appeal.

Appellants’ contentions are: (1) that the insurance policy is an “operator’s policy”; (2) that under section 415 of the Vehicle Code (this was the number of the code section at the time of the accident), an operator’s policy must cover liability imposed on the insured arising out of use by him of a non-owned motor vehicle; and (3) that use by the insured includes use by anyone whose application for driver’s license was signed by the insured.

The policy contains the following clause with reference to non-owned automobiles: “Definition of Hazards . . . Division 2—Premises—Operations—Automobiles Not Owned or Hired: The ownership, maintenance or use of the premises for the purpose of an automobile repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the use in connection with the above defined operations of any automobile not owned or hired by the named insured, a partner therein or a member of the household of any such person.” It will be observed that the policy limits the coverage to use in connection with the garage operations. This limitation, however, cannot avail respondent if the policy is an operator’s policy, because section 415 of the Vehicle Code is incorporated into every such policy.