Bendykowski v. Hall Chevrolet Co.

• Decision Date: 07 June 1960
• Citation: 103 N.W.2d 516,10 Wis.2d 579
• Parties: Dorothy BENDYKOWSKI et al., Respondents, v. HALL CHEVROLET CO., Inc., et al., Defendants, Ohio Farmers Indemnity Co., Appellant.
• Court: Wisconsin Supreme Court

Page 516

103 N.W.2d 516

10 Wis.2d 579

Dorothy BENDYKOWSKI et al., Respondents, v. HALL CHEVROLET CO., Inc., et al., Defendants Ohio Farmers Indemnity Co., Appellant.

Supreme Court of Wisconsin.

June 7, 1960.

Kivett & Kasdorf, Milwaukee, Nonald J. Lewis, Milwaukee, of counsel, for appellant.

Jesse J. Habush, Milwaukee, Howard A. Hartman, Milwaukee, of counsel, for plaintiffs-respondents.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Reuben W. Peterson, Jr., Milwaukee, of counsel, for defendants-respondents.

BROWN, Justice.

Ohio Farmers Indemnity Company contends that its policy does not accord coverage to Mrs. Mancheski under the circumstances of this accident. The policy is a standard policy in common use at this time. Mr. Mancheski's insured automobile was not involved in this accident but appellant concedes that the terms of its policy would give coverage to Mrs. Mancheski in this accident as spouse of the named assured were it not for the policy exclusion in the insuring agreement 'V(d)(2)', which is:

'This insuring agreement does not apply:

'(1) * * *

'(2) to any accident arising out of the operation of an automobile sales agency, repair shop, service station, storage garage or public parking place;'

Appellant submits that the demonstrator automobile was being used by the salesman of Hall Chevrolet Company in its business of selling an automobile with an automatic shift, though the Mancheskis did not intend or expect to buy the identical demonstrator nor was the agent trying to sell the demonstrator to them. The demonstration of the automatic shift automobile was a part of the operation of the automobile sales agency, and the accident arose out of such demonstration and consequently the exclusion clause of the policy denies coverage for the accident.

Respondents submit that the omnibus coverage clause contained in appellant's policy, required by sec. 204.30(3), Stats., compels coverage to Mrs. Mancheski for this accident. That statutory requirement, substantially, is:

'* * * The indemnity provided by this policy is extended to apply, in the same manner and under the same provisions as it is applicable to the named assured, to any person or persons while riding in or operating any automobile described in this policy when such automobile is being used for purposes and in the manner described in said policy * * * but no insurance afforded by this paragraph shall apply to a public automobile garage or an automobile repair shop, sales agency, service station and the agents or employes thereof. * * *'

If the policy protected the named assured under the circumstances of this accident sec. 204.30, Stats., would give equal coverage to Mrs. Mancheski. But sec. 204.30(3) does not operate to increase coverage to Mrs. Mancheski over and beyond that afforded to her husband. If exclusion 'V(d)(2)' of appellant's policy is effective to exclude coverage to the named assured for an accident under such circumstances that provision excludes coverage of the additional assured likewise. It makes no difference to this case whether the driver of the demonstrator car was the named assured or was the additional assured. They are equal in coverage or in its lack. The question remains: Does 'V(d)(2)' supra exclude both of them from being covered by the insuring agreement.

Respondents rely on Tolsma v. Miller, 1943, 243 Wis. 19, 9 N.W.2d 111, 112. In that case this court held that the exclusion clause incorporated in that policy did not exclude coverage of the additional assured under the circumstances of the accident. There are decisive differences to be observed between the policies in that case and the one at bar and differences also in the...