Foryan v. Firemen's Fund Ins. Co.

• Citation: 133 N.W.2d 724,27 Wis.2d 133
• Parties: Charlotte FORYAN et al., Plaintiffs-Respondents, v. FIREMEN'S FUND INS. CO., Defendant-Appellant, Edward Schlitt et al., Defendants-Respondents.
• Decision Date: 30 March 1965
• Court: United States State Supreme Court of Wisconsin

Page 724

133 N.W.2d 724

27 Wis.2d 133

Charlotte FORYAN et al., Plaintiffs-Respondents, v. FIREMEN'S FUND INS. CO., Defendant-Appellant Edward Schlitt et al., Defendants-Respondents.

Supreme Court of Wisconsin.

March 30, 1965.

Moen, Sheehan & Meyer, La Crosse, for appellant.

Thomas M. Anich, Ashland, for plaintiffs-respondents; Roy T. Traynor, Medford, of counsel.

BEILFUSS, Justice.

The pertinent policy provisions are as follows:

'PART I--LIABILITY

Coverage A--Bodily Injury Liability: (Company agrees) 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 * * * sustained by any person; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile. * * *

'Persons Insured: The following are insured under Part I: (b) with respect to a non-owned automobile: (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or a trailer, provided the actual use thereof is with the permission of the owner;

'Definition: Under PART I:

"Insured' means a person or organization described under 'persons insured';

"Relative' means a relative of the named insured who is a resident of the same household;

"Non-owned Automobile' means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative other than a temporary substitute automobile."

The defendant, Firemen's Fund Insurance Company, in support of its motion for summary judgment, filed affidavits of Edward Schlitt and Helene Schlitt in which they state that they had on previous occasions given Cheryl permission to use the car but had instructed her not to let others drive it; that prior to April 13, 1961, Cheryl had lost her driver's license; that they had forbidden her to drive thereafter and that her use of the car from April 13th to April 16, 1961, was not with their permission.

Prior to the time of the hearing on the motion, the whereabouts of Cheryl was unknown and no affidavits by her were submitted by either party.

In opposition to the affidavits filed on behalf of Firemen's Fund which deny the owner's permission to use the vehicle, the plaintiffs filed an affidavit by Bruce Gillman, an attorney at law. Mr. Gillman's affidavit states that shortly after the accident he was retained by Edward Schlitt, Helene Schlitt and Cheryl to represent them in making claim for damages they sustained by virtue of the accident of April 16, 1961; that he, shortly after the accident, interviewed Edward Schlitt and Helene Schlitt with respect to whether Cheryl had permission to operate the automobile; and that

'* * * HELENE and EDWARD SCHLITT explicitly replied that CHERYL McCUTCHEON SCHLITT [sic] had general permission to operate the family automobile while at home, and that she had express permission to use said automobile the day of the accident, which occurred on April 16, 1961; that at no time was affiant advised directly or indirectly as to any limitations being imposed upon CHERTY McCUTCHEON SCHLITT'S [sic] permission to use the automobile or to allow any of her friends to operate said automobile while in the company of their daughter, and that affiant to the present date has never been advised to the contrary.'

The affidavit further alleges that he, Gillman, is presently co-counsel for the Schlitts in an action for their damages now pending in the circuit court for Milwaukee county; that the nature and place of his employment has changed; and that the action is now being prosecuted by co-counsel.

The question before us is whether the Gillman affidavit raises a question of fact as to the permission of Sandra Sabbath to drive the Schlitt car. ²

In passing upon this question we reiterate our statements as they appear in Voysey v. Labisky (1960), 10 Wis.2d 274, 277, 103 N.W.2d 9, 12:

'The rule is well established in this state that when it is shown there is a substantial issue of fact, or when the evidence on a material issue is in conflict, or if the inferences to be drawn from credible evidence are doubtful and uncertain, the motion for summary judgment should be denied. Likewise, when there is credible evidence which under any reasonable view will either support or admit of an inference in support or in denial of a claim of either party, it is for the jury to draw the proper inference and not for the court to determine which of two or more permissible inferences should prevail. Elder v. Sage, 1950, 257 Wis. 214, 42 N.W.2d 919. We have often said that the power of the courts under the summary judgment statute (sec. 270.635, Stats., 33 W.S.A. p. 309), is drastic and should be exercised only when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. De Bonville v. Travelers Ins. Co., 1959, 7 Wis.2d 255, 96 N.W.2d 509, 97 N.W.2d 392; Ondrejka v. Ondrejka, 1958, 4 Wis.2d 277, 90 N.W.2d 615; Braun v. Jewett, 1957, 1 Wis.2d 531, 85 N.W.2d 364; Undovc v. Ross, 1954, 267 Wis. 182, 64 N.W.2d 747, 66 N.W.2d 200.'

And at page 280 of 10 Wis.2d, at page 13 of 103 N.W.2d:

'* * * Summary judgment procedure is not to be a trial on affidavits and adverse examinations. It is aimed at a sham answer which is interposed to secure delay. Stafford v. General Supply Co., 1958, 5 Wis.2d 137, 92 N.W.2d 267. The plaintiff should not be foreclosed from proving his cause of action. It is not the duty of one opposing summary judgment to prove his case or to put in all his evidence on summary judgment. He defeats the motion if he shows by affidavit or other proof that there are issues of fact or reasonable inferences which can be drawn from the evidence. Parish v. Awschu Properties, Inc., 1945, 247 Wis. 166, 19 N.W.2d 276; Pelon v. Becco, 1948, 253 Wis. 278, 34 N.W.2d 236. The court does not try the issues but decides on summary judgment whether there is an issue of fact to be tried. Bryan v. Noble, 1958, 5 Wis.2d 48, 92 N.W.2d 226.'

The question as to sufficiency of the Gillman affidavit is twofold: first, is the affiant competent to testify; and second, does the affidavit state facts sufficient to warrant a trial on the question of permission.

The affidavit alleges an attorney-client relationship between Gillman and the Schlitts, and the substance of a conversation made during the course of such relationship. Can the attorney, by affidavit, divulge the substance of that conversation?

Sec. 325.22, Stats., provides as follows:

'Communications to attorneys. An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment. This prohibition may be waived by the client, and does not include communications which the attorney needs to divulge for his own protection, or the protection of those with whom he deals, or which were made to him for the express purpose of being communicated to another, or being made public.'

Gillman does not stand in an attorney-client relationship to the plaintiffs, the defendant Firemen's Fund, nor its assureds Michael Sabbath and Sandra Sabbath, and owes them no duty of statutory confidence. His clients, Cheryl Schlitt and Helene Schlitt, are not parties to the action. Edward Schlitt, as characterized by Firemen's Fund's couns...