Plaintiff instituted this action to recover damages for personal injuries allegedly sustained by reason of the negligence and carelessness of defendant Joe Ferrant, his agents, servants and employees. Also joined as a defendant was American Fidelity and Casualty Co., Inc., a corporation, the insurer of defendant Ferrant, who was doing business as Yellow Cab Company in the city of Burbank, Los Angeles County. The liability of such corporate defendant was predicated upon the issuance by it of a policy of insurance to defendant Ferrant pursuant to an ordinance of the city of Burbank. Following the filing of an amended complaint, the defendants each interposed a general and special demurrer thereto, which were sustained by the court *309 without leave to amend. From the judgment of dismissal entered pursuant to the order sustaining both demurrers, plaintiff prosecutes this appeal.
Two counts are contained in the amended complaint, the first of which alleges that in connection with the operation of his taxicab business defendant Ferrant maintained an office and waiting room for the convenience of taxicab patrons; that directly in front of said taxicab office and at the west curb of Olive Street, the city of Burbank had designated a space for the exclusive use of defendant Ferrant in loading and discharging passengers for hire. That during the times mentiоned in the amended complaint the space just referred to was vacant and unoccupied by any vehicle. It is then alleged that at the time mentioned and for many years prior thereto plaintiff was afflicted with a physical disability known as neuro-muscular dystrophy, as a result of which he was unsteady in his walk and could only walk a few feet at a time; that plaintiff’s condition was obvious, apparent and known to defendant Ferrant and his agents. It is then set forth that on April 3,1942, at about 11:45 o’clock p.m., plaintiff entered the office and waiting room of defendant Joe Ferrant, requested that he be conveyed in one of defendant’s taxicabs to his home located in the city of Burbank. That at said time and place “defendant John Doe, as the agent, servant and employee of defendant Joe Ferrant, doing business as Yellow Cab Company, and acting in the course and scope of his employment, accepted plaintiff as a passenger for hire and directed the defendant John Doe I to conduct plaintiff from said taxicab waiting room to defendant’s taxicab.” It is then set forth in the amended complaint that while being conducted by defendant’s employee to said taxicab and while walking on a down-grade, wet and slippery sidewalk, to reach said taxicab, the plaintiff fell, thereby sustaining the injuries which gave rise to this action. After charging that the injury and damage to plaintiff was the sole and proximate result of the negligence and carelessness of the defendants, it is alleged that such negligence and carelessness arose from the fact that the' defendants failed to provide plaintiff with a taxicab at the place set apart by the city of Burbank as a taxicab stand directly in front of defendant’s оffice and waiting room; that the defendants required plaintiff to walk a distance of some 150 feet or more to a taxicab in order to obtain transportation to his home. That the defendants notwithstanding they *310 had full knowledge of the physical incapacity and limitations of the plaintiff as above set forth, required him to walk a distance of some 150 feet or more to obtain access to the taxicab. That notwithstanding defendants’ knowledge of plaintiff’s physical disability, defendants failed and neglected to “aid, assist or support the plaintiff in walking to said taxicab upon a down-grade, wet and slippery sidewalk.”
The second cause of action was directed against defendant insurance company alone, and by it plaintiff alleged that pursuant to an ordinance which is set forth in the amended complaint only by reference to its number and date of adoption, and which was allegedly in full force and effect at the time of the accident here in question, defendant insurance company had issued a policy of insuranсe conditioned that defendant Ferrant “shall pay all loss by reason of injury or damage that may result to persons or property from the negligent operation of such taxicabs or for violations of any of the provisions of this ordinance or the laws of the state of California.” It is then alleged that pursuant to the terms of such ordinance it was provided in such policy that the same “shall run to the city of Burbank and shall inure by its terms to the benefit of any and all persons suffering loss or damage covered thereunder.”
Respondents concede that since the appeal is one 'from a judgment following the sustaining of a demurrer without leave to amend they cannot rely for an affirmanсe of the judgment on the grounds specified in the special demurrer for the reason, as stated by respondent “ It is conceded that it would constitute an abuse of discretion—at least at a stage as early as the first amended complaint—to refuse a party leave to amend defects in a complaint which are the subject of sрecial demurrer only.” In their efforts to secure an affirmance of the judgment respondents rely exclusively on the proposition that the amended complaint fails to state a cause of action against either defendant.
The initial question presented for determination is whether under the allegations of the amended complаint the relationship of carrier and passenger was established and existed between the plaintiff and defendant Joe Ferrant. This relationship is created when one offers to become a passenger, and is accepted as a passenger after he has placed himself under the control of the carrier. Ordinarily, the existеnce of such relationship is established through circumstances which *311 warrant an implication that the one has offered himself to be transported on a trip about to be made and such offer has been accepted by the other (10 Am.Jur. 27, sec. 955).
That a passenger should have actually entered the vehicle is not a necessary prerequisite to the establishment of the relation of carrier and passenger. Such relationship is established when a person who intends in good faith to become a passenger goes to a depot, waiting room or other place designated as the site of departure, and by some action taken by the carrier, the latter indicаtes acceptance of the passenger as a traveler
(Sanchez
v.
Pacific Auto Stages,
Insofar as Count I is concerned, we are constrained to hold that the demurrer of defendant insurance company was properly sustained. Clearly the insurance company did not participate in the actual operation of the taxicab business and such participation therein is not alleged in the amended complaint. Without in any way connecting the insurance company with the activities of its co-defendant, Count I of the amended complaint charges that plaintiff’s injuries were occasioned by the negligence and carelessness of bоth defendants. Manifestly, the facts as alleged in Count I fail to show any actionable negligence on the part of defendant insurance company.
Coming now to a consideration of Count II, which is directed against defendant insurance company alone, we find it is predicated solely upon the latter’s claimed public liability under its poliсy of insurance by reason of the happening of the accident. Neither the insurance policy in question nor the ordinance pursuant to which it was issued is set out with particularity in the amended complaint. Assuming, as respondent insurance company does in its brief, that the *313 policy complied in its language or wording with the provisions of the city ordinance, the amended complaint reveals that the ordinance and the policy provided for (a) before any permit can be issued to operate cabs the owner must file, and keep in full force and effect, a policy of insurance; (b) the policy of insurance must be approved by the city council; (c) the policy must be with a solvent and responsible company authorized to do business in the State of California; (d) it must be in the sum of $20,000 and must contain a condition that the taxicab operator shall pay all losses resulting from the negligent operation of the taxicabs; (e) recovery in each instance is limited to $10,000 for the injury or death of one person; (f) the рolicy runs to the city of Burbank and inures by its terms to the benefit of all persons suffering loss or damage thereunder.
Respondent insurance company asserts that the demurrer was properly sustained as to Count II for the reason that the provisions of the Burbank city ordinance do not authorize the joinder of an insurer with the insured in an action for personal injuries.
Section 379a of the Code of Civil Procedure provides that “All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative; and judgments may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities.”
We are not in accord with respondents’ contention that section 427 of the Code of Civil Procedure prohibits a joinder of these two causes of action because one sounds in tort and the other in contract. The cited section specifically provides that several causes of action may be united in the same complaint where they arise “out of the same transaction or transactions connected with the same subject of the action... ”; and also that more than one cause of action may be united in the same complaint where they all arise out of “injuries to person.” Whatever liability was incurred by respondent insurance company undеr its contract of insurance arose out of the tort action, instituted to recover for personal injuries allegedly sustained by plaintiff. It was the injuries to plaintiff’s person that gave rise to the liability and obligation, if any, of respondent insurance company.
While conceding that a municipality has the right
*314
within reasonable limits to prescribe the nature of the security to be given by those operating vehicles for hire upon its public streets
(Kruger
v.
California Highway Indemnity Exchange,
It is conceded that the amended complaint alleges that the policy of insurance with which we are here concerned shall, pursuant to the terms of the ordinance, “inure by its terms to the benefit of any and all persons suffering loss or damage covered thereunder.” The cases we have cited establish as the law that the insurance carrier may be joined as a party defendant whenever the policy itself or the municipal ordinance, in compliance with which the policy is issued, provides that the policy should inure to the benefit of the public
(Fraher
v.
Eisenmann,
In view of the fact that the amended complaint herein alleged that the municipal ordinance under which the policy was issued prescribed that the same inured to the benefit of the public, the instant case comes squarely within the rule announced in the cases just cited and respondent insurance company’s demurrer tо the second cause of action should not have been sustained without leave to amend, upon the ground that a cause of action was not therein stated.
Respondent insurance company’s claim that any provisions of the municipal ordinance permitting, either expressly or by implication, the joinder of the insurance company *315 with the taxicab company in a suit for personal injuries, is invalid and in conflict with section 11580 of the Insurance Code of California, is without merit. Regulation by ordinance of the business of operating taxicabs upon the streets of a municipality is strictly a municipal affair, the regulation of which by municipalities is expressly authorized by section 11, article XI of the Constitution of this state. True, such regulations may not contravene or conflict with general laws of the state, but we view section 11580 of the Insurance Code as declarative only of the minimum provisions which must be embodied in public liability insurance policies, and not as restrictive of the right of an insurance company to assume by its contract, liability for more than the minimum responsibility prescribed by the statute.
For the foregoing reasons the judgment is reversed with directions to the court below to overrule the demurrer of defendant Joe Ferrant as to Count I and also to overrule the demurrer of defendant insurance company as to Count II. Appellant to recover costs on appeal.
York, P. J., concurred.
Doran, J., dissented.
Respondents’ petition for a hearing by the Supreme Court was denied March 6, 1944. Edmonds, J., Traynor, J., and Schauer, J., voted for a hearing.