Clark v. London & Lancashire Indem. Co. of America

• Decision Date: 29 October 1963
• Parties: , 98 A.L.R.2d 1037 Frank CLARK, Respondent, v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA, a foreign corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 29

124 N.W.2d 29

21 Wis.2d 268, 98 A.L.R.2d 1037

Frank CLARK, Respondent, v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA, a foreign corporation, Appellant.

Supreme Court of Wisconsin.

Oct. 29, 1963.

Gibbs, Roper & Fifield, Milwaukee, for appellant.

Affeldt & Lichtsinn, Eldred Dede, Milwaukee, for respondent.

CURRIE, Justice.

There are two issues which we find necessary to consider on this appeal. These are:

(1) Was defendant's motion procedurally defective on the ground that it failed to comply with sec. 270.635(2), Stats.?

(2) Were the damages sought from plaintiff by Kamke and the other claimants 'caused by accident' within the terms of the policy of insurance?

Because of our conclusion with respect to this second stated issue we find it unnecessary to pass on a third issue raised in the briefs, viz., whether plaintiff breached the covenant of the policy which required him to give defendant timely notice of the occurrence of any alleged accident.

Sufficiency of Defendant's Motion Papers

Plaintiff contends that defendant's motion papers failed to comply with the requirements of sub. (2) of sec. 270.635, Stats. If plaintiff is correct in this contention the order appealed from would have to be affirmed on this procedural ground and we would not reach the other issue relating to the merits.

Sub. (2) of sec. 270.635 requires that, where a defendant moves for summary judgment, there must be filed an affidavit 'of the moving party * * * that he believes * * * that the action has no merit.' In the instant case this affidavit was made by one of defendant's counsel. Plaintiff argues that such an affidavit is fatally defective and cites Dottai v. Altenbach (1963), 19 Wis.2d 373, 120 N.W.2d 41, and Fischer v. Mahlke (1963), 18 Wis.2d 429, 118 N.W.2d 935. The distinction between the Dottai and Fischer Cases on the one hand, and the instant case on the other hand, was that in Dottai and Fischer the moving party was an individual while here it is a corporation which can only act, speak and aver through its agents. This distinction was recognized in Monroe County Finance Co. v. Thomas (1943), 243 Wis. 568, 11 N.W.2d 190, which held that such an affidavit by counsel for a corporate party was sufficient to support a motion for summary judgment even though it did not contain a statement that affiant had personal knowledge of the facts. Therefore, we find no merit in the contention that the affidavit was defective because an attorney, not a party to the action, alleged there was no merit to plaintiff's cause of action.

The affidavit by defendant's counsel also stated that affiant 'has personal knowledge of some of the facts involved in this litigation and that he has received information with respect to other facts pertinent thereto.' The second ground of attack made by plaintiff is that the affidavit is insufficient because the affiant did not have personal knowledge of all the pertinent facts. Sub. (2) of sec. 270.635, Stats. does not require that the moving party's affidavit must state that he has personal knowledge of all pertinent facts. In many situations an individual party would not have such knowledge and would have to resort to information supplied to him in order to make this affidavit. This affidavit does not stand in the same category as affidavits which aver certain specific evidentiary facts. These latter must be made on personal knowledge and not on information and belief. McChain v. Fond du Lac (1959), 7 Wis.2d 286, 96 N.W.2d 607.

Defendant's written motion for summary judgment states that it is based 'upon the affidavit of Richard S. Gibbs ¹ annexed hereto and including the exhibits therein annexed and incorporated by reference, and upon all of the files, records and proceedings heretofore had herein, including the pleadings, plaintiff's reply to the defendant's demand to admit or deny, and such portions of the adverse examinations of the defendant's agents heretofore taken herein by the attorneys for the plaintiff as may be hereafter specifically and in writing called to the attention of the said Trial Court.'

Plaintiff attacks this incorporation of the pleadings in the case because they state ultimate facts of which the pleader may or may not have had personal knowledge. Apparently it is plaintiff's position that defendant, by referring to the pleadings in its motion, admitted the truth of all allegations in the pleadings. This is an erroneous assumption. If the defendant had made no reference to the pleadings in the motion, it still would have been the duty of the circuit court to examine the pleadings and to accept as verities those allegations of fact not specifically denied, or deemed to be denied as is the case of facts alleged by answer as an affirmative defense. See Home Savings Bank v. Bentley (1958), 5 Wis.2d 19, 23, 92 N.W.2d 377, 67 A.L.R.2d 1450. The express statement made in defendant's motion that it was grounding the same on the pleadings as well as the Gibbs' affidavit and other papers of record gave no greater legal effect to the role accorded pleadings on a motion for summary judgment than would be the case if the pleadings had not been mentioned. Furthermore, sub. (2) of sec. 270.635, Stats., does require a supporting affidavit by a party having personal knowledge of the facts, averring to the truth of ultimate facts alleged in the pleadings which neither have been expressly denied, nor are deemed to be denied.

Plaintiff also attacks the reference in the motion to such portions of adverse examinations 'as may be hereafter specifically and in writing called to the attention of the said Trial Court.' In Commerce Ins. Co. v. Merrill Gas Co. (1955), 271 Wis. 159, 168-169, 72 N.W.2d 771, 775, it was held that a deposition on adverse examination, or parts of the same, may be effectively used for the purpose of setting forth evidentiary facts in connection with motions for summary judgment, provided that the evidentiary matters from the deposition are stated in an affidavit, 'or are incorporated therein in whole or relevant part by proper reference,' Sub. (2) of sec. 270.635, Stats. requires that where 'documents or copies thereof' are to be used on a motion for summary judgment they are to be set forth in an affidavit of a 'person who has knowledge thereof.' The purpose of this requirement is to establish by affidavit the authenticity of the document, or copy thereof. However, no affidavit is required to establish the authenticity of an adverse examination, because this is established by the certificate of the officer before whom taken. See sec. 326.22, Stats.

Where an affidavit incorporates an adverse examination or part thereof by reference, there is no requirement that the affiant must state that the facts testified to in the deposition are true. We conclude that the deposition of an adverse examination which is properly authenticated by certificate of the officer before whom taken, and which has been opened, and identified under the procedure outlined in Kanios v. Frederick (1960), 10 Wis.2d 358, 364, 103 N.W.2d 114, falls without the classification of 'documents' as used in sub. (2) of sec. 270.635, Stats. We further hold that it may properly be made use of on a motion for summary judgment by express reference in the written motion as well as by reference in an affidavit.

In Kanios v. Frederick, supra, we pointed out, however, that where such a deposition is so voluminous that counsel, in fairness, ought to specify the portions relied upon, the trial court may order that this be done. See also Hyland Hall & Co. v. Madison, G. & E. Co. (1960), 11 Wis.2d 238, 247, 105 N.W.2d 305. Here the motion itself specified in effect that only those specific parts of the adverse examinations later called to the attention of the circuit court in writing were to be considered on the motion. We approve of this procedure as it insures that a record will be made of those portions of the adverse examinations which the circuit court may have properly considered in passing on the motion.

Plaintiff's brief quotes a statement from Dottai v. Altenbach, supra, 19 Wis.2d page 376, 120 N.W.2d pages 42-43, that parts of adverse examinations are generally inconclusive. Whether or not they are in a particular case depends upon the facts of that case. A positive statement of fact made in an adverse examination, not controverted by other portions of the testimony of the witness nor by affidavit, may be sufficient to establish a fact as a verity on a motion for summary judgment.

Insurance Coverage Issue

The insurance policy issued by defendant, upon which suit was brought by plaintiff, described the business of plaintiff as 'Operation of Gravel Pits' and insured the premises on which such gravel pits were operated. The portion of the definition of the hazards insured, which is material to this controversy, is: 'The ownership, maintenance or use of the premises, and all operations during the policy period which are necessary or incidental thereto * * *' The operations themselves are described as 'Sand or Gravel Digging' subject to certain exceptions not material hereto.

There were two separate coverage clauses in the insuring agreement portion of the policy, one covering bodily injury liability, and the other property damage liability. The bodily injury clause obligated defendant 'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined.' (Emphasis supplied.) The coverage clause with respect to property damage liability contained the same requirement that the damages defendant undertook to pay must have been 'caused by accident.'

The...