Smith v. California Highway Indemnity Exchange

SHENK, J.

On August 30, 1924, Ray H. Davis was the owner of a Chandler automobile which he operated as a jitney bus in the city and county of San Francisco. In operating the car on that day he injured the plaintiff, whose name was then Vina Nicol. She sued Davis alone and recovered a judgment for damages. On appeal the judgment was affirmed.

(Nicol

v.

Davis,

107 Cal. App. 26 [290 Pac. 114].) The judgment remained unsatisfied and the plaintiff brought this action against Davis’ insurance carrier, the defendant herein. At the close of all the evidence the court instructed the jury to return a verdict for the plaintiff, hence this appeal.

The first question presented is whether the accident was one covered by the insurance policy. Davis was operating his jitney bus on the “29th and Mission” route, which extended from the ferry at the foot of Market Street to Valencia Street, thence to Twenty-ninth and Mission. He resided at 311 Jersey Street, which is about five blocks from Twenty-ninth and Mission Streets. On the afternoon of the accident he had returned to his home for the purpose of taking a rest, in preparation for his night run. He parked his car in front of his home, on a grade. After his rest he entered his car, released the brake and backed down grade to the corner of Noe Street, where he struck the plaintiff. It is contended by the defendant that the streets from Davis’ home to Twenty-ninth and Mission Streets were not on the route over which he was authorized to conduct the jitney bus and therefore that the accident was not covered by the policy.

[327]

The policy indemnified the subscriber (Davis) against loss on account of damages for personal injuries suffered by any person resulting from the “use or maintenance” of the described automobile “wherever any automobile covered hereby may be in the service of the subscriber”. In an indorsement it is provided that the automobile covered “is to be operated in the service of the subscriber as a jitney bus . . . within the city and county limits of the city of San Francisco, and not elsewhere or otherwise, and that this policy is not intended to, and shall not cover any accident that may occur while said car mentioned in the schedule attached hereto is being operated for any other purpose and at any other time or place than herein stated, but it is intended that this policy shall cover said car when used as in this paragraph provided”. There is nothing in the policy which defines the route over which the jitney bus is to be operated. The schedule attached thereto specifies the address of the subscriber as 311 Jersey Street, and that the use to which the automobile is to be put is “jitney bus or occasional rent car”. It is further provided that the contract does not cover loss arising while the automobile “is being used or maintained for any purpose or business other than as specified in the schedule”.