Bulman v. Bulman

• Decision Date: 06 December 1955
• Citation: 271 Wis. 286,73 N.W.2d 599
• Parties: Hilda M. BULMAN et al., Respondents, v. Dana BULMAN et al., Defendants, Badger State Casualty Co., Appellant.
• Court: Wisconsin Supreme Court

Page 599

73 N.W.2d 599

271 Wis. 286

Hilda M. BULMAN et al., Respondents, v. Dana BULMAN et al., Defendants Badger State Casualty Co., Appellant.

Supreme Court of Wisconsin.

Dec. 6, 1955.

Wm. A. Cameron and Howard W. Cameron, Rice Lake, for appellant.

Doar & Knowles, New Richmond, William W. Ward, New Richmond (guardian ad litem for respondent Ronald Kittleson), for respondents.

MARTIN, Justice.

The appeal comes to this court on a statement of facts, in lieu of a record and transcript, from which it appears that on the day of the accident, July 28, 1953, the automobile owned by Odin Kittleson was being operated by Dana Bulman with the owner's permission; that Hilda Bulman was the only person injured in the accident; that the automobile was insured by Badger State Casualty Company under a policy of insurance which declared:

'Item 3. The insurance afforded is only with respect to such and so many of the following coverages as are indicated by a specific premium charge or charges. The limit of the Company's liability against each such coverage shall be as stated herein, subject to all of the terms of the policy having reference thereto.

'Coverages (as hereinafter

Limits of Liability defined)

* * *

* * *

F--Bodily Injury Liability

$5,000. each person

$10,000. each accident'

Under 'Insuring Agreements' the policy provided:

'Coverage F--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.'

Under the 'Conditions' applicable to all coverages, it further provided:

'3. Limits of Liability--Coverage F. The limit of bodily injury liability stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages, including damages for care and loss of services, arising out of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by one person in any one accident; the limit of such liability stated in the declarations as applicable to 'each accident' is, subject to the above provision respecting each person, the total limit of the company's liability for all damages, including damages for care and loss of services, arising out of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by two or more persons in any one accident.'

This is an action for damages brought upon a contract of insurance and the provisions of the contract govern the measure of recovery. Housner v. Baltimore-American Ins. Co., 1931, 205 Wis. 23, 236 N.W. 546; Engh v. Calvert Fire Ins. Co., 1954, 266 Wis. 419, 63 N.W.2d 831.

As stated in the Housner case, 205 Wis. at page 28, 236 N.W. at page 548:

"It is true that as a general rule a contract of insurance shall be construed most strongly against the insurer, but in our opinion the terms of this contract are not ambiguous. Contracts of insurance rest upon and are controlled by the same principles of law that are applicable to other contracts, and parties to an insurance contract have the legal right to insert such provisions in the agreement as they see proper so long as the contract does not contravene the law or public policy, and it is the duty of courts to construe and enforce such agreements as made and not to make new contracts for the parties.'

'The conditions in this policy must be construed with the insuring clause, and the insuring clause must inevitably be modified by the conditions, although, in ascertaining the meaning to be given to the conditions when they are ambiguous, the construction should be a liberal one in favor of the insured. * * *'

The policy before us expressly states that the recovery of 'each person' for all damages 'including...