On May 7, 1935, A.A. Kaplan, a resident of Dallas, Tex., procured an automobile liability insurance policy from the Continental Casualty Company through its agency in said city. This policy was written to protect the named assured, and such additional assureds as came within the provisions of an omnibus clause contained in said policy, against liability arising out of accident in the operation of a certain Chevrolet automobile. The policy contained the following provision:
"This policy does not cover any automobile . . . (d) while driven by or in charge of any person under the age limit fixed by law or under the age of fourteen (14) years in any event."
On June 30, 1935, while said policy was in force and effect, the automobile therein described was being operated upon the streets of the city of Tulsa, Oklahoma, by Ted Kaplan, a minor 15 years and 9 months of age, when said automobile was involved in a collision with a taxicab in which Marguerite Lolley, defendant in error herein, was a passenger. At the time said collision occurred, the city of Tulsa had in force and effect an ordinance which prohibited the driving or operation of any motor vehicle upon its streets by any person under the age of 16 years. Marguerite Lolley brought an action against Ted Kaplan, and others not here involved, to recover damages for the injuries which she sustained as a result of the collision.
The Continental Casualty Company, under a nonwaiver agreement, furnished counsel and assisted Ted Kaplan in his defense in that action. The plaintiff in said action recovered a judgment against Ted Kaplan for the sum of $2,500. *Page 23
The Continental Casualty Company refused to accept responsibility for the results of the accident under the claim that the automobile was being driven by a person under the age limit fixed by the ordinance of the city of Tulsa, and therefore, as contended by the casualty company, not covered by its policy.
After judgment was obtained, execution thereon was returned unsatisfied, and thereupon the judgment creditor caused the Continental Casualty Company to be summoned as garnishee of said Kaplan and to require of it payment of the judgment. The garnishee denied liability, and the plaintiff took issue therewith. The parties thereupon proceeded to try the cause to the court upon a stipulation as to the essential facts, which were substantially as above recited, and the additional testimony of A.A. Kaplan, which was admitted over the objection of the garnishee and which was to the effect that I. Sablosky, the agent of the garnishee who delivered the policy to A.A. Kaplan, knew that Ted Kaplan was below the age of 16 years and that he would drive the automobile which was described in said policy. The trial court took the matter under advisement for some time and expressed the view that since the automobile had been duly licensed in Texas and was in transit through Oklahoma, it was entitled to protection of the comity statutes, and that therefore the Continental Casualty Company should be held accountable as garnishee of Ted Kaplan, and rendered judgment accordingly, and the Continental Casualty Company appeals.
Issues of law alone are here involved. The parties have briefed the cause ably and extensively upon a number of issues, but, as we view the matter, the fundamental and decisive issue presented is whether the ordinance of the city of Tulsa fixed by law a limit under which an automobile might not legally be driven and operated upon the streets of said city. It is elementary that control over the streets and ways of a municipality is reserved to the state, and that a municipality may exercise only such control as has been delegated to it by the state. Martin v. Rowlett, 185 Okla. 431, 93 P.2d 1090; City of Tulsa v. Southwestern Bell Telephone Co., 75 F.2d 345; Ex parte Duncan, 179 Okla. 355, 65 P.2d 1015.
Cities, however, have been clothed with power to control and regulate the streets and alleys therein and may exercise their police powers for that purpose. Sections 2, 3, and 7, art. 18, Oklahoma Constitution; and sections 6380, 6397, 6410, O. S. 1931 (11 O.S.A. §§ 642, 660, 672). Prior to the enactment of article 5, ch. 50, Session Laws 1936-37, the authority of cities, towns, and villages to prescribe by ordinance the qualifications of drivers of motor vehicles upon the streets and alleys was recognized by statute (section 10290, O. S. 1931). The limitation upon that authority was that under the guise of regulation a pecuniary charge amounting to a tax could not be imposed. Ex parte Mayes, 64 Okla. 260, 167 P. 749; City of Muskogee v. Wilkins, 73 Okla. 192, 175 P. 497. The ordinance with which we are here concerned did not attempt to impose any charge upon the operator of a motor vehicle in the city of Tulsa or to in any manner interfere with the free use of the streets, but, merely in the interest of public safety, fixed an age limit below which it was declared to be unsafe for a person to drive or operate a motor vehicle in said city. This was a valid exercise of the police power of said city at the time of the enactment of said ordinance and on the date of the occurrence of the accident here involved, and until the authority which had been theretofore delegated by the state was withdrawn by the enactment of article 5, ch. 50, Session Laws 1936-37. Since, as we have pointed out, the ordinance was a valid one at the time the accident occurred, it follows that no liability ever attached under the policy by reason of the exclusion provision above created because the automobile was being driven and operated by a person under the age limit fixed by law at the time and place the accident occurred in which the plaintiff was injured and for *Page 24 which she recovered judgment against Ted Kaplan. United States Fidelity Guaranty Co. v. Guenther, 281 U.S. 34, 74 L. Ed. 683, 72 A. L. R. 1064; Hunter v. Western Southern Indemnity Co., 19 Tenn. A. 589, 92 S.W.2d 878; Phoenix Indemnity Co. v. Barrett, 167 Tenn. 116, 67 S.W.2d 135; Texas Indemnity Insurance Co. v. McLelland (Tex. Civ. App) 80 S.W.2d 1101; Daniel v. State Farm Mutual Insurance Co., 233 Mo. App. 1081,130 S.W.2d 244.
The judgment recovered being one for a tort for which the garnishee had never assumed liability, said garnishee could not be brought within any rule of estoppel, since the risk was one it never assumed. Utilities Insurance Co. v. Montgomery, 134 Tex. 640,138 S.W.2d 1062; McDanels v. General Insurance Co. of America, I Cal. A.2d 454, 36 P.2d 829.
In a supplemental brief filed March 24, 1943, defendant in error contends that plaintiff in error, having defended the cause as to Ted Kaplan without a nonwaiver agreement, signed by him, is estopped to deny liability, under the rule stated in Tri-State Casualty Co. v. McDuff, 192 Okla. 105, 134 P.2d 342, but in this case there was a nonwaiver agreement; the original was not introduced in evidence, and counsel for defendant in error asserts that he does not understand how the "unsigned, undated and unexecuted ex parte statement got into the record."
In the case-made, page 60, appears the following:
"The garnishee now offers in evidence defendant garnishee's Exhibit No. 1, which is a copy of a non-waiver agreement which was executed by the defendant Ted Kaplan and also signed by a representative of the garnishee, the Continental Casualty Company. This is a copy and Mr. Ward has very generously agreed that I might introduce the copy in lieu of the original, so with that agreement, we offer the garnishee's Exhibit No. 1."
There was no objection, and under the record it cannot be said that the garnishee in this case defended as to Ted Kaplan without a nonwaiver agreement.
The judgment of the trial court being erroneous as a matter of law, the cause is reversed and remanded, with direction to enter judgment for the garnishee, Continental Casualty Company.
GIBSON, V. C. J., and WELCH, HURST, and DAVISON, JJ., concur. CORN, C. J., and OSBORN, BAYLESS, and ARNOLD, JJ., dissent.