Bro v. Moran
| Decision Date | 11 October 1927 |
| Citation | 194 Wis. 293,215 N.W. 431 |
| Parties | BRO v. MORAN et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Superior Court for Douglas County; Archibald McKay, Superior Judge. Reversed.
Action by Hattie Bro, as administratrix, to recover for the death of her husband caused by injuries inflicted by an automobile owned by T. W. Moran and driven by Floyd Nicol. The Standard Accident Insurance Company, a defendant, appealed from a judgment against it.
The Standard Accident Insurance Company issued to T. W. Moran a policy of automobile insurance in which the company agreed “to indemnify, in the same manner and under the same conditions as the named assured is indemnified hereunder, any person or persons while riding in or legally operating any of the automobiles described herein, and any person, firm, or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or, if the named assured is an individual, with the permission of an adult member of the named assured's household other than the chauffeur or domestic servant.”
The action was dismissed against the defendant T. W. Moran. Judgment was entered against both defendant Nicol and the insurance company. Defendant Nicol did not appeal.L. H. Dow, of Duluth, Minn., and Powell & Sprowls, of Superior, for appellant.
Hanitch, Hartley & Johnson, of Superior, for respondent.
Cadigan & Cadigan, of Superior, for Nicol.
The single question presented is whether the provision of the policy quoted above gave the defendant Nicol indemnity so that recovery could be had of the insurance company. That, in turn, depends on the question whether defendant Nicol was legally operating the automobile with the permission of an adult member of Mr. Moran's household at the time the injury was inflicted.
The jury found that defendant Nicol was operating the automobile at the time of the accident with the permission of Emmett Moran, who was an adult member of the household of the insured. The case turns upon the question whether that finding is supported by the evidence. The only evidence which even tends to prove an express permission is the testimony of defendant Nicol that, as he was about to leave by the front stairway of the apartment in which a New Year's party was being held, he called to Emmett, whom he testifies he could not see, but whom he “imagined” to be in a hallway at the rear of the apartment near the kitchen door. He did not hear Emmett's reply, but heard him say something and then laugh, and he took it to mean that Emmett gave his consent that he might take the Moran car. Emmett...
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