Carlson v. Grimsrud

• Decision Date: 08 December 1936
• Citation: 223 Wis. 561,270 N.W. 50
• Parties: CARLSON v. GRIMSRUD et al.
• Court: Wisconsin Supreme Court

223 Wis. 561

270 N.W. 50

CARLSON

v.GRIMSRUD et al.^*

Supreme Court of Wisconsin.

Dec. 8, 1936.

Appeal from a judgment of the Superior Court of Douglas County; Archibald McKay, Judge.

Affirmed.

Being liable to Carlson for damages because of negligence, Grimsrud seeks by cross-complaint to recover from the Central Mutual Insurance Company on a contract of insurance alleged to have been made between him and the Insurance Company. Judgment was entered March 23, 1936, in favor of Grimsrud.

The pleadings show that Carlson, riding in Grimsrud's truck, sustained severe injuries because of Grimsrud's negligence. The Central Mutual Insurance Company was joined as a defendant, the complaint alleging that it was liable by reason of the insurance policy issued by it to the defendant Grimsrud. As its separate answer, the Insurance Company alleged that the coverage in the contract issued to Grimsrud excluded loss because of legal liability for bodily injuries sustained by occupants of the truck. Grimsrud in his answer denied negligence, but for a cross-complaint against the Insurance Company alleged that on August 3, 1935, he ordered a policy from defendant Insurance Company, and that the Insurance Company agreed to furnish such policy without exclusions as to the persons injured; that on August 3, the representative of the Insurance Company advised Grimsrud that he was fully covered. The Insurance Company answered the cross-complaint by a general denial and specifically denied that its agent had authority to make an oral contract of insurance; and alleged that the contract of insurance delivered to Grimsrud after the accident is binding upon the parties and that its agent had no authority to change or waive any of its provisions. The accident occurred August 7, 1935; the policy was delivered to Grimsrud August 8 or 9; on August 9, 10, or 11, the policy was taken up by the attorney for defendant Insurance Company.

Testimony as to Grimsrud's negligence and plaintiff's damage and in relation to issues with respect to the alleged oral contract of insurance as well as reformation of the policy was presented. Questions concerning plaintiff's right to recover against Grimsrud were submitted to a jury and that much of the result is not challenged. By stipulation of the parties, issues raised by the cross-complaint and answer thereto of the Insurance Company were decided by the court. Findings of fact and conclusions of law were made and judgment ordered reforming the written policy by striking therefrom the words, “excluding all occupants of assured's automobile.” From the judgment accordingly entered, the Central Mutual Insurance Company appeals.

Hughes & Anderson, of Superior, for Central Mut. Ins. Co. of Chicago.

Crawford & Crawford, of Superior, for Carlson.

Hanitch, Johnson, Fritschler & Barstow, of Superior, for Grimsrud.

FAIRCHILD, Justice.

[1][2] The finding by the trial court that on August 3, 1935, the appellant at the request of respondent agreed to issue a policy of insurance effective on that date, insuring against loss for legal liability on account “of the operation of the automobile owned by the said George Grimsrud to the extent of Five Thousand Dollars ($5,000) for injury to one person and Ten Thousand Dollars ($10,000) for injuries to more than one person, and without exclusion from the insuring agreement on account of the fact that the injured person was an occupant of the insured automobile” is sustained by evidence which sufficiently discloses the presence of all the essentials of a contract for insurance. The wisdom of invoking great caution in permitting oral contracts of...