Schabatka

Plaintiff insurance company has appealed from a judgment adverse to its contentions in a declaratory relief action. The action was filed to resolve a dispute between the company and its insureds over the application of the policy’s uninsured motorist coverage to the following facts;

On December 9, 1972, in Buena Park, Helen L. Schabatka, wife of the defendant Paul D. Schabatka (Paul hereafter), while she was crossing a street as a pedestrian, was struck and killed by an uninsured motorist. This was not a hit-and-run situation; the driver of the automobile was identified as Timothy H. Shipman, and all parties agree that the driver-owner of the vehicle causing death was uninsured within the meaning of Insurance Code section 11580.2.

Paul was not present at the scene of the accident. Although such absence from the scene and the fact that he learned of his wife’s death sometime after it occurred are not covered by the findings, these circumstances are described in an affidavit signed by Paul and on file as part of the trial court proceedings.

From this affidavit and to a certain extent from the findings it appears further that when Paul heard the news of his wife’s death…