Bachman v. Independence Indemnity Co.

THE COURT.

This is an action to recover on a policy of indemnity insurance. On June 19, 1927, Mrs. Katie Bachman requested Forest Bayliss, her son-in-law, to drive her automobile for her on a trip. He consented, and on the highway negligently drove it over an embankment. She was killed and other passengers were injured.

[530]

Mrs. Bachman had previously secured a policy of indemnity insurance from defendant company covering her automobile, which provided in part as follows: “ ... if, during the term of this policy ... by reason of its ownership, maintenance or use at any location within the United States of America and Canada, shall cause bodily injuries by accident, whether resulting fatally or otherwise,'to any person or persons, and for which bodily injuries the Insured and/or others as herein provided are liable for damages, then the company will insure against loss arising out of such liability . . . the named Insured, and/or any person or persons while riding in or legally operating any of the automobiles . . . with permission of the named Insured. ...”

Plaintiff, the administrator of Mrs. Bachman’s estate, filed suit against Bayliss for wrongful death, on behalf of her children. A default payment was entered in the sum of $7,507, which was never paid. Plaintiff then demanded payment from defendant insurance company, and upon its refusal, brought this action and recovered judgment in the lower court. Defendant appealed.

The question presented to us is whether the language of the policy covers the liability sought to be enforced here. The terms of the policy are very broad, and perhaps somewhat unusual. It insures

any person operating

the automobile with the permission of the insured. Bayliss, the driver, was unquestionably operating the machine, and the court so found, even though it also found that Mrs. Bachman was “in control” of the automobile. The policy insures for loss arising out of liability of the person operating the automobile to

cmy person or persons.

Are the children of Mrs. Bachman included within the meaning of this provision? This depends upon whether Bayliss is liable to them, and it is difficult to discover any. reason why he is not. His negligence caused the death of their mother, and the wrongful death statute (Cal. Code Civ. Proc., sec. 377) gives them a right of action against the person thus responsible.