Frint Motor Car Co. v. Gen. Accident, Fire & Life Assur. Corp.

• Decision Date: 14 December 1920
• Citation: 180 N.W. 121,173 Wis. 109
• Court: Wisconsin Supreme Court
• Parties: FRINT MOTOR CAR CO. v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

173 Wis. 109

180 N.W. 121

FRINT MOTOR CAR CO.

v.GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

Supreme Court of Wisconsin.

Dec. 14, 1920.

Appeal from Circuit Court, Milwaukee County; G. N. Risjord, Judge.

Action by the Frint Motor Car Company against the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland. Judgment for plaintiff, and defendant appeals. Affirmed.

Action on an insurance policy to recover a loss sustained under Workmen's Compensation Act, §§ 2394--1 to 31, Stats. Plaintiff had judgment in the trial court, and defendant insurance company appeals.

Respondent was engaged in the business of buying, selling, demonstrating and dealing in automobiles in Milwaukee and throughout Wisconsin, and maintained a warehouse, garage, and repair shop in connection therewith. For the purpose of advertising, and, as its officers said, “demonstrating,” the cars which it had to sell, respondent from time to time entered cars in races in the territory in which it did business. It did not treat this racing as a separate business, but considered it a part of its business of selling cars.

One Carl Healy was in respondent's employ as a mechanic. He worked on the machinery of cars, and it was part of his business to prepare the cars used in the races for that purpose. During races he was at times used as a “pitman,” stationed in an enclosure adjacent to the inner edge of the race track, and separated from the latter by a fence. On August 5, 1917, he was so engaged. It was his duty to work on cars at the pit, and to have charge of supplies and spare parts, and hand them out to those who drove his employer's cars in the races. He was instructed not to enter the track while they were in progress.

During the race one of respondent's cars had trouble, and stopped on the track some distance from the pit. Healy entered the track, as it was shown pitmen did at times despite instructions, and ran toward the car. There was a collision with another car, and he was killed.

A claim under the Workmen's Compensation Act was opposed on the grounds, inter alia, that Healy was not performing services growing out of and incidental to his employment when he was killed, and that his employment as a pitman was casual. Both these contentions failed, and the award of the Industrial Commission was affirmed in this court. Frint Motor Car Co. v. Indust. Comm. et al., 168 Wis. 436, 170 N. W. 285. Thereupon respondent paid the award.

Respondent was not exempted from being insured under the Compensation Act as to the whole or any part of its business. It carried insurance with appellant company, and brought this action to recover the amount of the award which it had been compelled to pay.

Material portions of the policy of insurance read as follows:

“Wisconsin Compensation Policy.

A. * * * [Appellant] agrees to assume and pay all liability, loss and obligation for accidental injuries or death, suffered while this policy is in force at the place or places of work and in the operation of the business described herein, by the employees of * * * (respondent) under the provisions of the Workmen's Compensation Act of Wisconsin as set forth in * * * sections 2394--1 to 2394--31 inclusive, according to the provisions of said act, except the liability of the assured for penalties for misdemeanors imposed by sections 2394--16 and 2394--24 of said act.”

“E. This policy does not cover any loss, liability or obligation of the assured for injury to or death of any employees of the assured, whose compensation is not included in the schedule hereinafter set forth. The estimated compensation includes, and the adjustment of the same will include, all compensation of every kind earned by all officials and employees of the assured described in said schedule, on page three hereof, including the amount paid to contractors and subcontractors.”

“(10) No condition or provision of this policy shall be waived or limited except by written indorsement attached hereto, signed by the United States manager.”

“Schedule.

4. Location of all places where the work undertaken by the assured is performed, including shops, yards, offices, workplaces or premises of the assured: Milwaukee and elsewhere in state of Wisconsin.

+-----------------------------------------------------------------------------+
                ¦Description of work covered by this     ¦Estimated    ¦Prem. Rate   ¦Advance ¦
                ¦policy and classification of risk:      ¦Annual       ¦per $100 of  ¦Premium.¦
                ¦                                        ¦Remuneration.¦Remuneration.¦        ¦
                +----------------------------------------+-------------+-------------+--------¦
                ¦(a) All operations--not included in     ¦             ¦             ¦        ¦
                ¦subdivision (b) and (c)--necessary and  ¦             ¦             ¦        ¦
                ¦incidental to the performance of the    ¦             ¦             ¦        ¦
                ¦work herein described as follows:       ¦$6,840.00    ¦$.90         ¦$61.56  ¦
                ¦Operating automobile salesroom, garage  ¦             ¦             ¦        ¦
                ¦and repair shop. The buying, selling,   ¦             ¦             ¦        ¦
                ¦demonstrating and dealing in automobiles¦             ¦             ¦        ¦
                ¦throughout the state of Wisconsin       ¦             ¦             ¦        ¦
                +----------------------------------------+-------------+-------------+--------¦
                ¦(b) Work done at the shops, yards or    ¦             ¦             ¦        ¦
                ¦other work places or premises of the    ¦             ¦             ¦        ¦
                ¦assured as above located, or work done  ¦             ¦             ¦        ¦
                ¦in connection with or preparation for   ¦             ¦             ¦        ¦
                ¦the work described in (a) foregoing     ¦             ¦             ¦        ¦
                ¦(mining or blasting excluded).          ¦             ¦             ¦        ¦
                +----------------------------------------+-------------+-------------+--------¦
                ¦(c) Elective officers--office duties    ¦             ¦             ¦        ¦
                ¦only. Executive officers superintending ¦             ¦.90          ¦        ¦
                ¦or doing manual labor, if any           ¦             ¦             ¦        ¦
                +----------------------------------------+-------------+-------------+--------¦
                ¦Traveling salesmen                      ¦4,200.00     ¦.14          ¦5.88    ¦
                +----------------------------------------+-------------+-------------+--------¦
                ¦Clerical force: Engaged in office duties¦2,400.00     ¦.07          ¦1.68    ¦
                ¦exclusively                             ¦             ¦             ¦        ¦
                +-----------------------------------------------------------------------------+
                

Draughtsmen: Office duties exclusively; no exceptions.

Drivers--wherever engaged: Included under item A above.

Chauffeurs--wherever engaged: Included under item A above.

Alterations and repairs and additions, if any, $4.00.

Total premium, sixty-nine and 12/100 dollars, $69.12.”

“6. If work is done by the assured, or contractors or subcontractors of the assured, and which is not included in the descriptions given, then this policy shall be construed to cover such work and a premium charge made in respectthereof according to the premium rates in use by this corporation, pursuant to section 2394--6 of the said act, and if done by contractors or subcontractors shall be based on the amount paid to such contractors and subcontractors.”

Besides the facts heretofore stated the trial court found:

“(6) * * * That Healy's work was not materially different at the time of the accident from that which he ordinarily did; that he was a mechanic, kept cars in proper condition, and was working as such mechanic and pitman in the regular course of his employment at the time of the accident.

(7) That at the time the said policy was issued to the plaintiff, the representative of the defendant located at Milwaukee knew that the plaintiff had been engaged to some extent in demonstrating its cars by racing them, and that some of its employees were used in looking after the cars on the racing ground.

That the racing of its cars by the plaintiff was for the purpose of furthering the sales of its machines; and, while it was not the usual method of demonstrating its cars, the...