Lackey v. Olds & Stoller Inter-Exchange

[688]

YORK, J.

An automobile owned by Morris Levenstadt was being operated by Nat Levenstadt, his chauffeur, who happened to be his nephew, where by the negligence of Nat Levenstadt in operating said automobile August E. Buelke was killed.

Nat Levenstadt, at the time of the accident, was alone in the automobile and on the way to purchase clothing for himself.

The defendant had issued a policy of insurance to Morris Levenstadt, and an action was brought against said Morris Levenstadt and Nat Levenstadt for damages for the death of Buelke, because of the negligence of Nat Levenstadt, and judgment was rendered for plaintiff, against

both

defendants, for $5,166.97, and costs, and said judgment was not paid, and this action was against appellant upon the insurance policy for the amount of such judgment, alleging insolvency of defendants therein and nonpayment. The question before the court in the present action was, and the "real question raised in this appeal is, as to whether by the terms of the insurance policy appellant is liable herein for the amount of such judgment. Appellant contends that a breach of the terms of the policy was made by policy-holder by signing the application for a chauffeur’s license for Nat.Levenstadt. By the terms of the policy, Morris Levenstadt was insured by appellant “Against actual loss by reason of the liability imposed by law, ... on account of bodily injuries (including death resulting therefrom) accidentally suffered ... by reason of the operation or use of” the automobile described in the policy. The Motor Vehicle Act, section 24 (a) (Stats. 1917, p. 407), which was construed in the ease of

Buelke

v.

Levenstadt,

190 Cal. 684 [214 Pac. 42], makes the person who signed the application jointly and severally liable with the minor. The signer of the application was therefore made liable as a matter of law for the negligent act of the minor in operating the car, whether he was on the business of the signer of the application or not. The Motor Vehicle Act, section 24 (a), expressly makes the negligence of the minor imputable to the person who signs his application ; hence the liability is one expressly created and imposed by the statutory law. At the time of the accident Nat Levenstadt was operating the Ford automobile truck