Drewek v. Milwaukee Auto. Ins. Co.

• Decision Date: 09 February 1932
• Citation: 207 Wis. 445,240 N.W. 881
• Parties: DREWEK v. MILWAUKEE AUTOMOBILE INS. CO., LIMITED MUTUAL.
• Court: Wisconsin Supreme Court

207 Wis. 445

240 N.W. 881

DREWEK

v.MILWAUKEE AUTOMOBILE INS. CO., LIMITED MUTUAL.^a1

Supreme Court of Wisconsin.

Feb. 9, 1932.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge.

Action by Loraine Drewek, as administratrix of the estate of Constantine Drewek, deceased, against the Milwaukee Automobile Insurance Company, Limited Mutual.From a judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

ROSENBERRY, C. J., and WICKHEM, J., dissenting.

Action commenced February 8, 1930, to recover from the defendant, as insurer under a policy of automobile liability insurance issued to Jahnke Bros., the amount of a judgment which was recovered in another action by plaintiff against Max Kopczynski, an employee of Jahnke Bros.From a judgment for plaintiff in this action entered on July 25, 1931, defendant appealed.Gold & McCann, of Milwaukee (W. G. Sullivan, of Milwaukee, of counsel), for respondent.

Rouiller & Dougherty, of Milwaukee (George A. Affeldt and Thomas A. Byrne, both of Milwaukee, of counsel), for appellant.

FRITZ, J.

Plaintiff, as administratrix of the estate of Constantine Drewek, had recovered judgment against Max Kopczynski for his negligent operation of a truck in such manner as to cause the death of Constantine Drewek, who was riding in the truck.The truck belonged to Kopczynski's employer, Jahnke Bros., grocers, to whom defendant had issued a policy of automobile liability insurance covering that truck, as hereinafter stated.At the time of the casualty, Kopczynski was using the truck after his regular working hours to haul furniture, at the request of his friend, Drewek, for a friend of the latter, and, after performing that service, the friend gave Kopczynski a dollar.Kopczynski had obtained permission from his employer to use the truck on that occasion by falsely stating that he desired to use the truck to haul a phonograph for himself in exchange for a radio; and his employer did not know that he was using the truck for another purpose.On the trial of this action, the jury found that the employer gave permission to Kopczynski to operate the truck for the use and purpose for which it was used by him at the time of the casualty.It is very doubtful whether the evidence admits of that finding.However, inasmuch as it is undisputed that, at the time in question, the truck was being operated with the permission of the assured, Jahnke Bros., the mere deviation from the letter of the permission would not in itself exclude Kopczynski from the indemnity afforded by the policy, if the use to which the truck was then being put were otherwise within the coverage of the policy.

[1][2][3] As regards the persons indemnified, the insurance, by virtue of section 204.30 (3), Stats., as well as a provision embodied in the policy itself, extended to the named assured, i. e., Jahnke Bros., and also “to any person 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 and with the permission of the named assured.”“Permission,” as used in that provision, may have been intended to mean the consent, obtained in the first instance from the assured, to the possession of the truck by the operator thereof, regardless of the use to which he puts it while it continues in his possession by virtue of that initial consent; or it may have been intended to mean consent to use the truck only for some specified purpose.If the latter meaning was intended, then, as was said in Dickinson v. Md. Casualty Co., 101 Conn. 369, 125 A. 866, 869, 41 A. L. R. 500, “it would, in each case, be necessary to make inquiry into the purpose and extent of the permission.* * * In place of a certain provision in the policy of definite meaning it would have inserted a provision breeding uncertainty, inviting litigation, and making the defense of a departure from the permission an available and often used defense.This is exactly what the courts and Legislature have frowned upon--uncertain and ambiguous provisions in contracts of insurance under which insurers seek an escape from the obligation of paying the insurance indemnity contracted for.”Although defendant may not voluntarily have inserted the provision required by section 204.30 (3), Stats., in its policy, the law imputes such provision to the policy whether written therein or not.The statute was intended to promote the interests of all concerned, including the public, in the business of automobile accident insurance.It is a remedial statute, and should be construed liberally to suppress the mischief and advance the remedy which it was intended to afford.Stone v. Inter-State Exchange, 200 Wis. 585, 587, 229 N. W. 26.Thus construed, the provision must be held to have been intended to have the meaning first stated above.The words limiting the persons covered to the assured or those operating the automobile, “with the permission of the named assured,” were intended, as was said in Stovall v. N. Y. Indem. Co., 157 Tenn. 301, 8 S.W.(2d) 473, 477, 72 A. L. R. 1368, to exclude from the protection of the policy “a person who should take the automobile and use it without permission or authority in the first instance.If, however, the automobile covered by the policy is delivered to another for use, with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose not within the contemplation of the insured when he parted with possession.”Dickinson v. Md. Casualty Co., supra;Md. Casualty Co. v. Ronan, 37 F.(2d) 449, 72 A. L. R. 1360;Peterson v. Maloney, 181 Minn. 437, 232 N. W. 790;Md. Casualty Co. v. Hoge, 153 Va. 204, 149 S. E. 448;U. S. F. & G. Co. v. Hall, 237 Ky. 393, 35 S.W.(2d) 550.See, also, State v. Mularkey, 195 Wis. 549, 218 N. W. 809;State v. Boggs, 181 Iowa, 358, 164 N. W. 759.

[4][5][6] However, whether the truck was being operated by the named assured, or by somebody else with the permission of...