Maeda v. Sierra Nevada Life & Casualty Co.

[272]

MR. JUSTICE Pro Tem. TUTTLE Delivered the Opinion of the Court.

This is an action brought to recover upon

a policy of accident insurance issued by appellant. Judgment for the full amount of the policy, $1,000, was entered for plaintiff, and the appeal is taken therefrom.

On August 14, 1928, appellant issued to Toyokichi Maeda a policy of accident insurance wherein plaintiff was designated as beneficiary in the event of loss of life. Thereafter the insured met his death by drowning. He drove his automobile, in the late afternoon, upon a ferry-boat which plies between Ryan Island and Grand Island in Sacramento County. This boat was thirty feet long and twelve feet wide. It was moored to the shore, and was reached by an incline upon the Grand Island side which has a twenty per cent grade. It was raining at the time of the accident. The only witness to the whole occurrence was called by plaintiff. He testified that the insured drove his-automobile down the incline toward the boat at a speed of three or four miles per hour, but when the four wheels of the car were upon the ferry, the automobile speeded up to some twenty-five miles per hour, and ran off the end of thp boat, plunging into the water. The car was recovered the following morning, and the body of the insured, drowned, was found within it. There was evidence that the brakes upon the car were defective and without lining, so that the car could not be stopped quickly going ten or twenty miles per hour. There was also testimony that when the car was towed from the scene of the accident, the brakes would not hold properly.

The policy limited recovery to accidental death caused “by the wrecking or disablement of a private automobile”, and the first point urged by appellant is that the accident does not come within the foregoing provision. It is conceded that there was no “wrecking” of the car, so the inquiry is limited to the meaning of the word “disablement”. It is the contention of the appellant that this word “necessarily connotes that there must be damage or injury to the structure of the automobile itself”, and that impaired or defective brakes do not come within that category. Respondent takes the position that, by virtue of the defective brakes, there was a “disablement” within the terms of the policy.

[273]