(dissenting).
The appellee, James D. Coughran, was injured as a result of the operation of an automobile belonging to R. O. Anthony, to 'whom the appellant has issued a policy of insurance, which under the terms of the policy and under the law of California gave a right of action thereon to a person so injured in the event the insured was bankrupt or insolvent. Calif.Stats.1919, c. 367, p. 776. This action is of that nature. The appellant interposed several defenses: It denied that the appellee owned the judgment, and that the insured was insolvent. It alleged "that the insured had not performed all the terms of the policy because at the time of the accident the automobile was not being operated by the insured or wife or by anyone with the consent and permission of the insured, and upon the further ground that the insured and his wife, Helen B. Anthony, had made false and fraudulent representations to the appellant as to who was driving and operating the car at the time of the accident, and that the insured and Helen B. Anthony failed to cooperate with the appellant in the defense of this action, as required by the policy. In a second separate defense it was alleged that the automobile at the time of the accident was being driven and operated by a person in violation of the law of the State of California as to age and driver’s license, and that the driver of the car was a female minor, age thirteen years. In a third defense appellant alleged the failure of the insured and Helen B. Anthony to .co-operate in the defense of the action brought against the insured. In a fourth defense appellant alleged misrepresentations made by the insured and Helen B. Anthony to the appellant as to who was driving the car at the time of the accident. In a fifth defense it was alleged that the defense of the action against the insured was undertaken solely under a nonwaiver agreement, and that appellant had informed the insured that it was not liable under the policy. In a sixth defense appellant alleged that the policy was void because the insured and Helen B. Anthony had concealed or misrepresented in writing material facts concerning the action, and in a seventh defense that under another provision of the policy they had failed to co-operate in the defense of the action brought against them by failing to furnish a true statement of the facts and circumstances surrounding the happening of the accident. The cause was tried before the court without a jury, the jury having been waived, and the court made its findings of fact and conclusions of law and rendered judgment in favor of the appellee and against appellant for the full amount of the claim ($5,082.55) with interest and costs. No findings or conclusions of law were presented to the court for ruling thereon and no motion was made for judgment at the conclusion of the testimony. The appellant makes sixteen assignments of error. Several of these assignments are predicated upon the failure of the court to make certain findings (assignments Nos. 1, 2, 3, 6, 7, 8, 9, 10, and 11). They present no question for review as findings were not presented to the trial court for ruling thereon. Assignments 12, 13, and 16 raise no questions for review. These assignments are either too general or are not based upon any ruling. They are as follows :
“XII. That the court erred in rendering judgment in favor of the plaintiff and ap-pellee, and against the defendant and appellant, and the same is not supported by the evidence.
“XIII. That the. evidence does not support the findings of fact. * * *
"“XVI. That the court erred in holding that the policy of insurance which was the subject matter of the action, insured liability arising out of the accident in question.”
The only question presented by the record is whether or not the findings support the judgment. This is presented in various ways in the assignments of error. (Assignments Nos. 4, 5, 14, and 15). The principal contentions of the appellant revolve around the claim that at the time of the accident the machine was being driven and operated by a thirteen year old girl in violation of the terms of the policy and of the statutes of California. The insurance policy is made a part of the findings. Under the heading “Terms and Conditions Forming a Part of this Policy,” and the subheading “(1) Risks not Assumed by this Company,” we have the following:
“The company shall not be liable and no liability or obligation of any kind shall at*245tach to the company for losses or damage: (A) * * * (D) Unless the said automobile is being operated by the assured, his paid driver, members of his immediate family, or persons acting under the direction of the assured; * * *
“(E) Caused while the said automobile is being operated by any person whatsoever either under the influence of liquor or drugs or violating any law or ordinance as to age or driving license. * * * ”
The Motor Vehicle Act of California (Stats. 1927, p. 1427, § 58(a) in effect at the time of the accident, provided: “It shall be unlawful for any person to drive a motor vehicle upon any public highway in this state, whether as an operator or a chauffeur, unless such person has been licensed as an operator or chauffeur.”
The Motor Vehicle Act of California (Stats.1931, p. 2108, § 64(a), c. 1026) provided : “An operator’s license shall .not be issued to any person under the age of sixteen years.” [Except under circumstances not involved here].
The Motor Vehicle Act of California (Stats.1923, p. 536, § 76) provided: “No person shall authorize or knowingly permit a motor vehicle owned by him or under his control, to be driven by any person who has no legal right to do so or in violation of the provisions of this act.”
Sections 1 and 18 of the California Motor Vehicle Act (Stats.1923, pp. 518, 519) defined an “operator” within the meaning of the act to be, “Every person who drives, operates or is in actual physical control of a motor vehicle upon a public highway.” It may be conceded that at the time of the accident the automobile of the insured was in charge of his wife, a member of his family, and consequently that he was insured against liability within the meaning of subdivision (D) of the policy above quoted. This much is conceded by the appellant, and it is clear that the adjudication in the tort action that Mrs. Helen B. Anthony was operating the car is binding upon the appellant. The difficulty arises by reason of provision (E) above quoted.
The findings are not entirely consistent. The third finding is that the automobile was being operated by Helen B. Anthony so negligently as to proximately cause the accident. In dealing with the second defense, that the automobile was being driven by a thirteen year old girl, Nancy Leid-enacker, the court found that the car at the time of the impact which resulted in the injury to the appellee was being jointly-operated by Helen B. Anthony and Nancy Leidendeker. This is followed by a detailed statement as to how the car was being operated, namely: “ * * * that at the time of the accident, insofar as the propulsion of the vehicle was concerned, other than the means of direction, all in-strumentalities of said automobile were being physically actuated by said minor Nancy Leidendeker, with the acquiescence and knowledge of Helen B. Anthony and without any knowledge, acquiescence or consent on the part of the assured, R. O. Anthony ; that the proximate and direct cause of the collision between the insured automobile and a truck owned by San Pedro Commercial Company was the act of Helen B. Anthony in seizing the steering wheel of the automobile at and immediately preceding the moment of impact and collision.”
In view of the statutory definition of what constitutes an operator, namely, one in actual physical control of a motor vehicle (Cal. Motor Vehicle Act, §§ 1, 18, supra), and in view of the purpose of the law to protect the public from the lack of judgment and skill of a young child, it seems clear that the child was driving the automobile in the case at bar within the- meaning of that term as defined in the statutes of California and, consequently, was violating the law of California, and that the wife also, who in a legal sense had control of the car, was violating the statute by permitting the child to operate the car. Therefore, whether we consider the question from the standpoint of the action of the child or of the wife the car was operated in violation of law as to age and driving license. If it was operated in violation of such a law the policy expressly provides that there shall be no liability on the part of the Insurance Company. If we assume, as the court found, that the car was being jointly operated and that the child had control of some part of the driving mechanism, and the wife had control of another portion, it is still true that each was violating the provisions of the law — the child by driving the car and the wife by permitting her to do so.
Turning to the question of the effect in this action of the judgment in the tort action, wherein a judgment was secured by the appellee against the insured R. O. Anthony and his wife, Helen B. Anthony, the *246judgment roll is not before us; hence, the effect of this judgment must be determined from the findings herein in relation thereto, namely, that the appellee brought an action against R. O. Anthony and Helen B. Anthony and that the defense of that action was conducted under a nonwaiver agreement by the appellant, that the complaint in that action alleged that Helen B. Anthony was the driver of the automobile insured at the time of the accident, and that judgment was recovered against R. O. Anthony and Helen B. Anthony. Under the law of California a judgment secured against an insured in such an action is conclusive against the Insurance Company which has undertaken the defense of the action on behalf of the insured. Parra v. Traeger, 214 Cal. 535, 6 P.(2d) 941; Cal.Civ.Code, § 2778. The judgment, therefore, is conclusive as to the amount of the damages suffered by the appellee, and as to the liability of R. O. Anthony and Helen B. Anthony. Lamb v. Belt Cas. Co., 3 Cal.App.(2d) 624, 40 P.(2d) 311.
The tort action brought by the injured person against the insured did not involve any defenses which the Insurance Company may have by reason of the terms of the policy. See Bryson v. International Ind. Co., 88 Cal.App. 100, 262 P. 790. Although by the terms of the policy the Insurance Company was not liable if the car was being driven by a person who in so doing was. violating the law, it could not litigate its exemption from liability under the policy in the tort action, because under the law of California an allegation by the defendants that the car was being driven by a thirteen year old child jointly with and with the consent of Helen B. Anthony, in violation of law, would constitute an admission of negligence by the defendant Helen B. Anthony. And it would have been no defense in the tort action for R. O. Anthony to have alleged that the car was jointly driven by Helen B. Anthony and the minor although if the car had been wholly operated by the thirteen year old minor in violation of his orders and instruction he would not have been personally liable. It follows that the question of whether or not the car was jointly driven by Mrs. Anthony and the child at the time of the accident was not involved in or litigated in the tort action. In that action it was alleged and the court found that the car was being operated by Mrs. Anthony. There may be an element of inconsistency in saying that although the court, in the tort action, found that Mrs. Anthony was driving the car at the time of the accident, in this action the Insurance Company can rely upon the claim that the car was also driven by the thirteen year old girl. But inasmuch as the question of joint driving, in so far as it involved a defense of appellant under the policy would be entirely foreign to the tort action and could not properly be litigated therein and was not so litigated, the judgment in the tort action does not prevent the Insurance Company from advancing the defense it now interposes. See Bryson v. International Ind. Co., supra; Rogers v. Detroit Automobile Inter-Ins. Exch., 275 Mich. 374, 266 N.W. 386; Baxter v. Central West Cas. Co., 186 Wash. 459, 58 P.(2d) 835.
I conclude that the finding that the car was jointly operated by Mrs. Anthony and the child is a conclusion of fact binding upon us and that this conclusion of fact does not support the conclusion of law as to liability on the part of the Insurance Company, nor support the judgment.
With reference to the defenses of concealment and misrepresentations and failure of co-operation, appellant’s argument is that the wife in making the report of the accident and in making such representations as she made to the Insurance Company to the effect that she was driving the car was acting as agent of the husband in> making such representations. It is sufficient to say that that question is foreclosed by the findings of the court on this question in favor of appellee. The finding that the person did not make representations is a finding that he did not make such representations through an agent.
The judgment should be reversed, and the court should be directed to enter judgment on the findings in favor of the appellant.