Opinion
Rehearing Denied April 8, 1931
Hearing Granted by Supreme Court May 4, 1931.
Appeal from Superior Court, Fresno County; S.L. Strother, Judge.
Action by Henry Bachman, as administrator of the estate of Katie Bachman, deceased, against Independence Indemnity Company. Judgment for plaintiff, and defendant appeals.
Reversed.
COUNSEL
Willis I. Morrison, of Los Angeles, and Ray W. Hays, of Fresno, for appellant.
B.M. Benson and W.H. Stammer, both of Fresno, for respondent.
OPINION
MARKS, Acting P.J.
Henry Bachman was at all times herein mentioned the duly qualified and acting administrator of the estate of Katie Bachman, deceased.
On and before June 19, 1927, Katie Bachman was the owner of a Buick sedan. It appears from the allegations of the complaint, and the evidence, that on this date she requested Forest Bayliss to drive the automobile for her, and that while he was driving it over the Pacheco Pass highway, with the deceased sitting beside him on the front seat of the car, he drove it off the highway and over an embankment, killing Katie Bachman and injuring others riding with them.
Prior to the accident, appellant had written and delivered to deceased a policy of public liability indemnity insurance, a copy of which is attached to the complaint and which contains the following:
"The Independence Indemnity Company, (hereinafter called ‘the Company’) hereby agrees with the Insured named in Statement 1, (Katie Bachman), that if, during the term of this policy, any automobile described in Statement 4, (the Buick Sedan involved in the accident) 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 hereinafter provided are liable for damages.
"Then the Company Will Insure Against Loss Arising Out of Such Liability, Subject to the Limits Set Forth in Statement 11."
Respondent, as administrator, filed suit against Forest Bayliss on behalf of the children of Katie Bachman for the damage suffered by them from the death of their mother. A default judgment was entered in favor of the plaintiff in the sum of $7,507, which judgment became final, but was not paid. Respondent then demanded payment of the judgment from appellant, and, upon its refusal to pay, brought this action. The court below rendered judgment in favor of respondent in the sum of $5,007.
The court found all of the allegations of the plaintiff’s complaint true, or, in other words, that at the time of the accident Forest Bayliss was driving the Buick sedan at the request, and with the permission of Katie Bachman and for her. While many questions are argued by appellant on this appeal, the only one we need to consider is whether or not the children of Katie Bachman can recover under the language of the public liability policy which we have quoted.
It is well settled in this state that the personal representatives or heirs at law of a deceased cannot recover for a death where the deceased would have had no cause of action for the injury. 8 Cal.Jur. 960; Watts v. Murphy, 9 Cal.App. 564, 99 P. 1104; Good v. City of San Bernardino, 49 Cal.App. 559, 193 P. 790; Burnham v. Stone, 101 Cal. 164, 35 P. 627; Young v. Southern Pacific Co., 182 Cal. 369, 190 P. 36. It therefore remains for us to determine whether or not Katie Bachman could have recovered from appellant for her injuries had she survived.
It is admitted by respondent that Bayliss was driving the automobile as the agent and servant of Katie Bachman. He also admits that the negligence of Bayliss in the operation of the automobile caused the accident. Mrs. Bachman was sitting on the front seat by the side of the driver at the time of the accident. She had arranged the trip and had invited the other passengers to accompany her and must be held to have been "in charge of the expedition." Gates v. Pendleton, 184 Cal. 797, 195 P. 664, 666. We must conclude that "the liability of an owner, under the circumstances above described, is doubtless a primary one" (Bosse v. Marye, 80 Cal.App. 109, 250 P. 693, 697), and that the negligence of Bayliss must be considered as the negligence of Mrs. Bachman.
The public liability policy was not a policy of accident insurance indemnifying Katie Bachman against injuries suffered by herself in an accident. By its definite terms it insured her against claims for damages arising from bodily injuries caused by accident to any person or persons, for which she or others named in the policy might become liable. The mere reading of the policy makes it self-evident that Katie Bachman, had she lived, would have had no right of action against appellant for any injuries suffered by her in the accident. She having no cause of action against appellant, it follows that her children and heirs at law can have no greater right of recovery than that given her by the terms of the policy. The complaint failed to state a cause of action against appellant, and the judgment is not supported by either the pleadings or the findings.
Appellant urges many other grounds for a reversal of the judgment, but it is not necessary that we consider them here. The case of Leo Bachman v. Independence Indemnity Co. (Cal.App.) 297 P. 110, the opinion in which is this day filed, considers some of them and may be referred to for a further statement of the facts and questions involved.
Judgment reversed.
We concur: JENNINGS, J.; LAMBERSON, Justice pro tem.