Samson v. State

130 P.2d 452, 55 Cal. App. 2d 194, 1942 Cal. App. LEXIS 42

• Court: California Court of Appeal
• Decided: October 28, 1942
• Docket: Civ. No. 13770
• Status: Published

Opinions

DRAPEAU, J. pro tem.

By his amended complaint the plaintiff alleges that the defendant, the State of California, and its officers in the Department of Motor Vehicles, have-demanded the surrender of his driver’s license, and the license plates for his automobile, because of his failure to pay a judgment against him for damages caused by his negligent operation of said automobile; that he was insured against this casualty in a Nevada corporation, which has failed to pay the judgment, and which is now in receivership; that when the state officers demanded the surrender of his license and of his plates, he filed with the' Department of Motor Vehicles an affidavit setting forth that he was insured by said corporation; that notwithstanding this the. department still insists on the surrender of his license plates and threatens to proceed against him in the criminal courts if he does not do so. The prayer of the complaint is for injunctive relief.

Demurrer was sustained without leave to amend, with judgment for the defendant, from which plaintiff has appealed.

The only question involved is whether plaintiff by his complaint brings himself within the. provisions of section 411.5 of the Vehicle Code, and particularly within that portion of the section reading as follows:

“If the department is satisfied from such papers that such insurer was authorized to issue such policy of insurance in the State of California at the time of issuing such policy and that such insurer is liable to pay such judgment, at least to the extent and for the amounts hereinbefore provided in this, chapter,, .the. department -shall not- suspend, such license or licenses and such certificate or certificates, or if already suspended, shall reinstate them.” (§ 411.5, Motor Vehicle Code, as amended Stats. 1939, p. 2321.)

The Insurance Code provides that “A person shall not transact any class of insurance business in this State without first being admitted for such class. Such admission is secured by procuring a certificate of authority from the commissioner. Such certificate shall not be granted until the applicant conforms to the requirements of this code and of the laws of this State prerequisite to its issue.” (Ins. Code, § 700.) Insurance companies organized in other states are permitted to transact business in California upon complying with the requirements of the Insurance Code, designed to secure an examination by the Insurance Commissioner to determine, among other things, the solvency of such organizations.

The complaint in this case does not allege that the plaintiff’s insurance company had been authorized to transact business in this state. The demurrer was therefore well taken unless some legal exception can be found which will permit plaintiff to keep his operator’s license and number plates.

Plaintiff maintains that this exception is to be found in that portion of the Insurance Code having to do with surplus line brokers. (§§ 1760-1779, Ins. Code.) Insurance Code, section 1763, provides that a surplus line broker may place insurance with non-admitted insurers under certain circumstances prescribed in the section. Conceding that plaintiff has adequately pled these circumstances in his complaint, an analysis of the pertinent provisions of the Vehicle Code and of the Insurance Code requires us to hold that the claimed exception does not modify section 411.5 of the Vehicle Code.

The purpose of chapter 2, sections 410 to 418 of the Vehicle Code is to insure that victims of negligence in the operation of motor vehicles shall be compensated for their loss and damage. When a defendant fails to pay a judgment against him, caused. by his negligent operation of a motor vehicle, the code requires that officers of the Department of Motor Vehicles shall see to it that he is denied the privilege of thereafter operating motor vehicles upon the highways of this state. To avoid this penalty all that any motor operator need do is to see that his car is insured with an insurance company authorized tti transact business in California. The word “authorized” as used in the Vehicle Code means a person admitted to transact insurance business in this state, having complied with the laws imposing conditions precedent to transaction of such business. (Ins. Code, § 24.)

No one may circumvent the purpose and intent of the law by contracting insurance with some out-of-state, fly-by-night concern, through the instrumentality of a surplus line broker. The sections of the Insurance Code relative to surplus line brokers are not in conflict with, nor do they modify in any manner the provisions of the Vehicle Code which require the operator of a motor ear who negligently damages another to either pay such judgment as may be rendered against him, or show that the casualty was insured against by an insurance company authorized to do business in the State of California, or thereafter keep off the highways of the state. This conclusion is compelled by familiar rules of statutory construction. (Johnston v. Baker, 167 Cal. 260 [139 P. 86].)

The judgment is affirmed.

York, P. J., concurred.