The appeal is from a judgment denying recovery in a suit on a policy of automobile liability insurance. The case was tried to the court, sitting without a jury. The trial court’s special findings of fact, not challenged here, disclose the following situation:
Peter P. Hansen was insured by appellee in respect of liability for injuries to or the death of third persons growing out of the operation of the insured’s car. The policy of insurance contained a provision to the effect that “the company shall not be liable * * * for: * * * Accidents occurring while the automobile * * * shall be used for carrying passengers for compensation.”
At a time when the policy was in force, Mads Madsen and Chris Jensen were riding in the Hansen automobile, which was being operated by Hansén. An accident occurred, and as a result Jensen received injuries from which he died. The appellants are the.sons of Jensen. They, together with Jensen’s widow, brought suit against the insured, Hansen, claiming that the accident was due to the latter’s negligence. In that suit, which- the appellee insurance company defended, judgment in the amount of $7,500 and costs was entered against the insured. The judgment was affirmed on appeal. Jensen v. Hansen,
On the day of the accident, the insured, Madsen and Jensen were engaged in making appraisals for a national farm loan association. For a period of time the three had been doing the appraisal work of the association. In traveling about to make the appraisals the three would on some occasions use the automobile of Madsen, sometimes that" of Jensen, and sometimes that of Hansen. They had a standing agreement among themselves that in the use of the automobiles a charge of 5 cents per mile would be made, this charge to be borne equally by the three. On the day of the accident it was understood that Madsen and Jensen would each pay to the insured the sum *470 ■ of one and two-thirds cents per mile for the use of the latter’s automobile.
■ The association paid the sum of $5 for each appraisal, this sum being divided equally among the three appraisers. While it was not necessary for all three men actually to view the property appraised, it was necessary for all three to sign the appraisal report before they became entitled to the fee allowed by the association. It was necessary for the men to use an automobile in the performance of their appraisal work.
From these findings, the trial court concluded as a matter of law that at the time of the accident the automobile was being used for carrying passengers for compensation; and accordingly judgment was rendered for the appellee insurance company. The question presented here is whether the conclusion and judgment are supported by the findings.
The insurance contract was executed and delivered in' California, and the California law governs in its interpretation. Mutual Life Ins. Co. v. Johnson,
The only helpful California decision to which our attention has been called is that of Western Machinery Co. v. Bankers Indemnity Co., supra. There the policy contained the provision that “none of the insured automobiles are or will be used to carry passengers for a consideration, actual or implied.” An employee of the insured Machinery Company used one of its vehicles to transport, a prospective purchaser of machinery to a place where the machinery might be inspected. As a consequence of the driver’s negligence, an accident occurred and the passenger was injured. No monetary consideration for the transportation was paid by the passenger. The Supreme Court of the state, after observing that the question had not previously been passed upon in that jurisdiction, reviewed the cases in other jurisdictions and concluded that the car was not being used to carry passengers for a consideration, actual or'implied.
The appellants rely in part on Marks v. Home Fire & Marine Ins. Co.,
Holdings similar to the Marks Case are found in Arms v. Faszholz, Mo.App.,
In Sleeper v. Massachusetts Bonding & Ins. Co., supra, and in Neilson v. American Mutual Liability Ins. Co., supra, a monetary consideration for the transportation was paid, in one case by the passenger, and in the other by a third party on the passenger’s behalf. In the Sleeper
*471
Case, it was said that (186 N.E. page
779)
“whenever there is a contract, based on valuable consideration, having as its main purpose the carrying of passengers, the insurer , under the form of policy in this case
1
does not undertake to indemnify the owner or operator against liability for an occurrence, during the journey covered by the contract.” In that case, and also in the Neilson Case, recovery on the policy was denied. In tibe Western Machinery Co. Case, the California court quotes, also, with seeming approval, from Ocean Accident & Guarantee Corp. v. Olson, 8 Cir.,
An extended analysis of the case law on this subject need not be undertaken. In the light of the facts and of the decisions to which attention has been called, we are constrained to affirm the judgment ■of the trial court.
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The case before us is not one in which the owner of the car was to be reimbursed for operating expenses. Ocean Accident & Guarantee Corp. v. Olson, supra. Nor is it one in which the compensation was paid as a voluntary contribution or as a mere social amenity. See Reed v. Bloom,
Affirmed.
Notes
The policy excluded coverage “when” the motor vehicle is being used in the “carrying of passengers for a consid- . eration.”