Fee v. Heritage Mut. Ins. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: FAIRCHILD
• Citation: Fee v. Heritage Mut. Ins. Co., 117 N.W.2d 269, 17 Wis.2d 364 (Wis. 1962)
• Decision Date: 02 October 1962
• Parties: Merrill FEE, Appellant, v. HERITAGE MUTUAL INSURANCE CO., a Wis. corporation, Respondent.

Page 269

117 N.W.2d 269

17 Wis.2d 364

Merrill FEE, Appellant, v. HERITAGE MUTUAL INSURANCE CO., a Wis. corporation, Respondent.

Supreme Court of Wisconsin.

Oct. 2, 1962.

William F. Hayes, Ripon, William A. Ritchay, Milwaukee, of counsel, for appellant.

John P. McGalloway, Sr., William D. McGalloway, Fond du Lac, for respondent.

FAIRCHILD, Justice.

By the provision relied upon, the defendant insurance company agreed

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

'A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by any person;

'B. injury to or destruction of property, including loss of use thereof, hereinafter called 'property damage';

arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damages and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.'

Plaintiff contends that by this provision the insurance company has promised to pay those sums which he became obligated to pay, in order to provide his wife with medical and hospital care made necessary by her injury arising out of the use of the automobile. The language of the provision does not support his contention.

The contract provides that the insurer will pay all sums which the insured is legally obligated to pay as damages. Damages are:

'A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another.' ¹

The law, for reasons of policy, requires a husband to support his wife. ² His duty includes an obligation to pay for medical care furnished her. ³ When he has paid or incurred sums for such care, he may recover them as damages from one who is legally responsible for the injury which made them necessary, but his marital obligation is not an obligation to pay them as damages. Since Mr. Fee was not legally obligated to pay Mrs. Fee's expenses as damages, he can not recover those sums under his insurance policy.

It happens that Mrs. Fee was injured in a...