In 1953 thе Mast Lumber Company was engaged in the trucking business. It carried a comprehensive general and automobile liability insurance policy issued by St. Paul Mercury Indemnity Company. The policy provided that the insurer would pay on behalf of the insurеd all claims which the insured became obligated to pay by reason of liability imposed upon it by law for bodily injury or deаth. “Insured” is defined in the policy to mean the named insured or any other person, firm or corporation, while using or legally responsible for the use of the insured’s vehicles, provided such use is with the permission of the named insured.
A certificate of insurance, with endorsements, was issued to Mast by Underwriters at Lloyds of London. This constituted excess liability insurance over thе St. Paul policy and was subject to the same terms and conditions.
Also in effect at the time of the accident, hereinafter referred to, was an automobile garage liability policy issued by Hardware Mutual Casualty Company to onе De La Forest. This policy provides coverage for all operations necessary or incidental to the conduct of the business of the De La Forest Garage, and the ownership, maintenance or use of any automоbile in connection with the garage operations. This policy provides coverage for the insured and to аny person while using an automobile covered by the policy and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.
With referеnce to a non-owned automobile, this policy affords coverage to the named insured and any other pеrson or organization legally responsible for the use by such named insured of an automobile not owned or hired by such other person or organization.
The hereinabove described insurance policies, in 1953, were controlled by section 415 of the California Vehicle Code of 1935 (now section 16451 of the 1959 Vehicle Code). Under this section, a motor vehicle liability policy must “insure the person named therein and any other person using or responsible for the use of said motor vehicle, or motor vehicles with the express or implied permission of said assured.”
In 1953 Mast, in the course of its operations, engaged De La Forest, the operator of a repair shop, to repair an axle from one of its truck-trailer units. De La Forest sublet the work to the Mark
While the trailer was being hauled behind a truck on Highway 101 in Marin County, California, the repaired axle broke, and one set of dual wheels crossed the highway and landed on top of an automobile operated by one Donald Urban, inflicting injuries from which the said Donald Urban died. His widow on behalf of hersеlf and minor child brought an action against Mast and De La Forest for damages for wrongful death. The action was settled and the amount agreed upon in the settlement was paid by the insurance companies.
Mast and De La Forest brought аn indemnity action against Yandle and Wesley Temple, operator and owner of the Mark Haines Welding Shop. Therеafter, appellants instituted the instant action against the insurance companies alleging that they were insured by the policies.
In order to bring themselves within any of the above three policies, as supplemented by California public policy, appellants must show that they were persons using or responsible for the use of the vehicle involved in the accident.
The first question is whether the welding and machining of a trailer axle taken from a vehicle is
using
the vehicle within the meaning of the insurance policies. As generally understood, the word “use” means to make use of or to enjoy. See Wahler v. Thompson,
We agree with appellants that the word using is not synonymous with driving. A person is using a motor vehicle if he lets a friend drive it, Osborne v. Security Ins. Co.,
California courts have found persons responsible for the use of a motor vehicle on the theory of respondeat superior, Pleasant Valley Lima Bean Growers and Warehouse Association v. Cal-Farm Ins. Co.,
Appellants were not responsible for the use of the vеhicle, but only for their defective work. Their liability for accidents arising out of the use of the vehicle is limited to their own negligence in the repair of the axle. This is quite different from the above cases where the person held respоnsible as a parent or master need not himself be guilty of negligence.
We conclude that appellants were not using the trailer or responsible for its use within the meaning of the insurance policies in question.
Affirmed.