Cullen v. Travelers' Ins. Co. of Hartford, Conn.

• Decision Date: 06 March 1934
• Citation: 214 Wis. 467,253 N.W. 382
• Parties: CULLEN ET AL. v. TRAVELERS' INS. CO. OF HARTFORD, CONN.
• Court: Wisconsin Supreme Court

214 Wis. 467

253 N.W. 382

CULLEN ET AL.

v.TRAVELERS' INS. CO. OF HARTFORD, CONN.

Supreme Court of Wisconsin.

March 6, 1934.

Appeal from a judgment of the Circuit Court for Rock County; George Grimm, Circuit Judge.

Action by A. H. Cullen and another against the Travelers' Insurance Company of Hartford, Connecticut. From a judgment dismissing the complaint, plaintiffs appeal.--[By Editorial Staff.]

Affirmed.

Action to recover upon an automobile liability insurance policy issued by defendant to the plaintiff Myrtie Cullen, and insuring her against liability arising from the operation of an automobile owned by her. Plaintiffs had paid out money in defending, and in the settlement of an action brought against them and their son, Wayland Cullen, by Orville Brimmers, who had sustained injuries by reason of the operation of the automobile on May 17, 1929, by plaintiffs' son, who was then under sixteen years of age. Plaintiffs tendered the defense of that action to defendant, but it refused to defend. After the settlement, this action was brought to recover for the amount paid by plaintiffs, and the defendant denied liability. The action was tried by the court, without a jury, and judgment was rendered in favor of the defendant, dismissing the plaintiffs' complaint on the merits. Plaintiffs appealed.

McGowan, Geffs, Fox & Persons, of Janesville (Robert K. Cullen, of Madison, of counsel), for appellants.

Jeffris, Mouat, Oestreich, Wood & Cunningham, of Janesville, for respondent.

FRITZ, Justice.

[1] The policy upon which this action was based was issued on September 9, 1926, and thereafter renewed, annually, including a renewal on September 9, 1928, for the ensuing year. During that year, the casualty occurred which gave rise to the claim for indemnity. In relation to the coverage afforded by that policy, there was the following provision:

“Four--This agreement shall exclude any obligation of the Company

(b) While any disclosed automobile is being driven in any race or competitive speed test or by any person under the age fixed by law or under sixteen years in any event, or as respects any disclosed automobile which has been sold or assigned.”

In view of that provision, the coverage did not extend to the operation of the automobile while it was being driven “by any person * * * under sixteen years in any event.” That express exclusion from any obligation of the defendant under the policy was applicable and operative whenever the driver, by whom the automobile was being driven at the time of a casualty, was a person under sixteen years of age, regardless of whether he was the named assured, or a driver otherwise legally using the automobile, or one for whose negligent operation of the automobile the named assured, or some other person, was legally responsible. True, as to such coverage as was afforded by the policy, the indemnity thereunder was extended (subject to certain provisions here immaterial), on the one hand, by a provision in the policy to “any other person or organization while legally using any such automobile, including also any other person or organization legally responsible for the use thereof,” and, on the other hand, by virtue of provisions in section 204.30, Stats., was applicable “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. Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile.”

[2][3] However, neither of those provisions effected any enlargement or change in the coverage afforded by the policy as to any person entitled to the indemnity afforded thereby. In that connection, it must be noted that, as the dates of the policy in suit, as well as the renewals thereof and the casualty in question, are all prior to the year 1931, when section 304.33, Stats., chapters 393 and 477, Laws of 1931, was enacted, the provisions in that statute, which prohibit policies containing certain restrictions on the coverage, are not applicable to the policy and renewals in suit, and the provisions thereof which restrict, as stated above, the coverage afforded thereby.

[4][5] Consequently, in view of the express and unambiguous limitation on the coverage, which was afforded by the policy, the operation of the automobile by plaintiffs' son, at the time of the casualty, while he was but fifteen years of age, was not within the coverage, and there is therefore no obligation on the part of the insurer to indemnify any person whatsoever. The fact that there had been issued to plaintiffs' son a special driver's license under section 85.08 (1), Stats., and that thereunder his parents were responsible in law for damages because of his negligent operation of the automobile, is immaterial. As we held in Drewek v. Milwaukee Automobile Ins. Co., 207 Wis. 445, 449, 240 N. W. 881, 883, and Bernard v. Wisconsin Automobile Ins. Co., 210 Wis. 133, 136, 245 N. W. 200: “If, because of express limitations in the policy on the scope of the insurance, the casualty or the operation of the automobile at the time of the casualty was not within the coverage of the policy, then there is no liability on the part of the insurer, regardless of whether the automobile was then being operated by the assured or by some one else with his permission. Neither section 204.30...