Employers' Mut. Liab. Ins. Co. of Wis. v. Tollefsen

• Decision Date: 05 November 1935
• Citation: 219 Wis. 434,263 N.W. 376
• Parties: EMPLOYERS' MUT. LIABILITY INS. CO. OF WISCONSIN ET AL. v. TOLLEFSEN ET AL.
• Court: Wisconsin Supreme Court

219 Wis. 434

263 N.W. 376

EMPLOYERS' MUT. LIABILITY INS. CO. OF WISCONSIN ET AL.

v.TOLLEFSEN ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1935.

Appeal from an order of the Circuit Court for Door County; Henry Graass, Circuit Judge.

Reversed.

Action by Employers' Mutual Liability Insurance Company and Frank Pichette against Oscar Tollefsen, C. D. Brower, and the Standard Accident Insurance Company. From an order entered dismissing the complaint as to the Standard Accident Insurance Company, the plaintiffs appeal.

The plaintiff Employers' Mutual Liability Insurance Company insured the Sturgeon Bay Company against liability under the Workmen's Compensation Act (St. 1933, § 102.01 et seq.). The plaintiff Pichette was an employee of the Sturgeon Bay Company, and was injured while performing service pursuant to his employment. The Industrial Commission awarded compensation to Pichette consisting of down and future monthly payments. The Employers' Mutual Liability Insurance Company under the subrogation provision of the Workmen's Compensation Act, section 102.29(2) Stats., sues the defendants Tollefson and C. D. Brower as joint tortfeasors by whose negligence Pichette was injured, and the Standard Accident Insurance Company as the insurer of Brower under an insurance policy indemnifying Brower against damage for injuries to persons inflicted through negligence in the operation of a truck while engaged in the conduct of his business, to recover for itself the amount of compensation which it has paid and must pay in the future upon the award of the Industrial Commission, and to recover for Pichette the amount of his damages, joining Pichette with it as plaintiff. The Standard Accident Insurance Company pleaded as a separate defense that the policy upon which the claim of its liability is based runs to Brower and the Sturgeon Bay Company jointly and excludes liability under the Workmen's Compensation Law and liability for injuries to employees of both Brower and the Sturgeon Bay Company. This defense was submitted to the court before trial of the other issues, and an order was entered dismissing the complaint as to the Standard Accident Insurance Company. From this order the plaintiffs appeal.Bruemmer & Bruemmer, of Kewaunee, for appellants.

Lines, Spooner & Quarles, of Milwaukee, (M. U. Hayden, of Detroit, Mich., and Howard A. Hartman, of Milwaukee, of counsel), for respondents.

FOWLER, Justice.

[1] The only provisions of the policy in suit deemed by the parties material to the appeal are the coverage clause insuring the defendants “C. D. Brower, Jr. and/or the Sturgeon Bay Company,” as the “named assured,” and the exclusion clauses exempting from coverage (1) “any accident to any employee of the assured arising out of and in the usual course of * * * the business * * * of the assured,” and (2) “any obligation assumed by or imposed upon the assured under any workmen's compensation agreement, plan or law.” We must assume, in addition, that the policy contains the provisions required by section 204.30, Stats., relating to automobile indemnity insurance, one of which is that the indemnity shall extend “to any person * * * legally responsible for the operation” of the automobile covered.

It is manifest that we are confronted with the task of first construing “and/or,” that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of some one too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients. We have even observed the “thing” in statutes, in the opinions of courts, and in statements in briefs of counsel, some learned and some not.

The appellants contend that the purpose and intent of the policy as to Brower is to indemnify him against damage through accidents caused by him or his employees in operating the truck in carrying on his business; that the word “assured” in the exclusion clause of the policy should be construed as referring only to employees of Brower. The respondents contend that the word “assured” in the exclusion clause refers to both Brower and the Sturgeon Bay Company, and that by that clause accidents causing injury to an employee of either are excluded.

[2][3] We are of opinion that the policy should be construed as indemnifying Brower against damage through injuries to persons done by the truck while in operation in the conduct of his business, except as to injuries to his employees; as indemnifying the Sturgeon Bay Company against damage through injuries to persons done by the truck while in operation in the conduct of its business, except as to injuries to its employees; and as indemnifying both Brower and the Sturgeon Bay Company from damage through injuries to persons done by the truck when and if in operation in business being conducted by them jointly, except as to employees employed by them jointly. If Brower had been operating the truck as the agent of the Sturgeon Bay Company, instead of as an independent...