Goller v. White

• Decision Date: 28 June 1963
• Parties: Daniel G. GOLLER, a Minor, by John R. Holden, his guardian ad litem, Appellant, v. James J. WHITE, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 193

122 N.W.2d 193

20 Wis.2d 402

Daniel G. GOLLER, a Minor, by John R. Holden, his guardian ad litem, Appellant, v. James J. WHITE, et al., Respondents.

Supreme Court of Wisconsin.

June 28, 1963.

Supplemental Opinion July 9, 1963.

Rehearing Denied Oct. 1, 1963.

Action by plaintiff Daniel G. Goller, a minor, against defendants James J. White and Farmers Mutual Automobile Insurance Company (hereinafter 'Farmers Mutual') to recover damages for personal injuries sustained while riding on a farm tractor owned and operated by defendant White.

The accident occurred on June 3, 1960, while White operated the tractor on a public highway enroute from one of his farms to another also owned by him. The complaint alleged that White was negligent in permitting the twelve-year-old plaintiff to ride on the drawbar of the tractor and in failing to warn him that several bolts protruded from one of the wheels. As a result, these protruding bolts caught plaintiff's right trouser leg causing injury to his right leg. The complaint further charges additional negligence on the part of White in not taking plaintiff to a hospital for treatment immediately after the accident.

The complaint also alleged that Farmers Mutual had issued a policy of liability insurance to White which extended coverage to plaintiff at the time of the accident. Farmers Mutual appeared specially and served and filed an answer which set forth (1) a plea in abatement that plaintiff could not maintain a direct action against it; and (2) certain exclusionary clauses in the policy issued by it to White which, it alleged, denied coverage with respect to plaintiff's cause of action. The answer of White inter alia set forth that at the time of the accident plaintiff was residing with White as a foster child, having been placed in White's home by the Department of Public Welfare of Milwaukee county. The parties stipulated that at the time of the accident defendant White's home had been licensed by the Milwaukee Department of Public Welfare as a foster home, and that plaintiff had been placed in such home as a foster child by said Department.

The parties also stipulated that the issues raised with respect to Farmers Mutual's plea in abatement and denial of coverage were to be determined by the circuit court upon the pleadings and briefs of the parties before trial of the negligence issues. Pursuant to this stipulation, the circuit court held that the policy, which was denominated a 'Farmers Liability and Medical Payments Policy,' was not 'an automobile policy' within the meaning of secs. 204.30(4) and 260.11(1), Stats., and sustained the plea in abatement. The court further determined that the policy afforded no coverage to plaintiff under the pleaded exclusionary clauses. The circuit court's memorandum decision was followed by findings of fact and conclusions of law in accord therewith. Judgment was entered on September 5, 1962, dismissing the complaint on the merits as against Farmers Mutual.

Thereafter defendant White moved for summary judgment. This motion was granted and judgment was entered November 14, 1962, dismissing the complaint as against White. Plaintiff has appealed from both judgments.

Holden & Peckham, Sheboygan, Verlin H. Peckham, Madison, for appellant.

Humke, Poole & Axel, Sheboygan, for insurance company.

Clemens, Miller, Hayes & Werner, Sheboygan, and William G. Mooney, Plymouth, for White.

CURRIE, Justice.

The issues for decision on this appeal are:

(1) Was any coverage afforded plaintiff by the policy issued by Farmers Mutual to White?

(2) Is a person who stands in loco parentis to a minor immune from suit by the minor to recover for personal injuries grounded upon negligence?

The trial court's determination, that the instant policy was not an automobile policy and, therefore, that the action could not be maintained against Farmers Mutual until judgment was first recovered against White, was made prior to our decision in Snorek v. Boyle (1962), 18 Wis.2d 202, 118 N.W.2d 132. In that case we held (1) that the type of policy is immaterial in deciding whether a direct action can be maintained against the issuing insurance company, and (2) that if coverage is extended thereby to a farm tractor while operating on a public highway, then it is a 'motor vehicle' within the meaning of secs. 204.30(4), and 260.11(1), Stats. Therefore, whether or not the judgment that dismissed the complaint against Farmers Mutual can be sustained necessarily turns on whether or not there was coverage under the policy.

COVERAGE UNDER THE POLICY

A copy of the policy is attached to Farmers Mutual's answer. It is labeled a 'Farmers Liability and Medical Payments Policy' and, subject to the exclusionary clauses, affords coverage with respect to White's farming operations on two described farms in Sheboygan county. This coverage is extended to two classes of persons: the general public under insuring agreements AB and C; and farm employees under insuring agreements AB(1) and C(1).

The first applicable exclusionary clause reads as follows:

'This policy does not apply: (c) Under coverages AB and C * * * to bodily injury * * * of (1) any insured or any member of his family residing in the household of any insured * * *.'

As previously noted, coverages AB and C relate to the general public and not to White's employees because the latter are specifically covered under insuring agreements AB(1) and C(1).

An 'insured' is defined in the policy as follows:

'The unqualified word 'insured' includes (a) the named insured, [and] (b) if residents of his household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of an insured * * *.'

Plaintiff was about twelve years old at the time of the accident. Legal custody of plaintiff, which included his care, was vested in the Milwaukee County Welfare Department. When this agency licensed White's home as a foster home and placed plaintiff in that home, it delegated plaintiff's care to White. Thus, under the above-quoted definition, plaintiff was 'in the care of' the named insured, White, and therefore an additional insured under the policy. Thus Exclusion (c) precludes any coverage to plaintiff as a member of the public under insuring agreements AB and C.

Plaintiff's complaint alleges that on the date of the accident he was performing services for White on his two farms. Thus plaintiff contends that he was afforded coverage as an employee under insuring agreements AB(1) and C(1). With respect to this contention, Farmers Mutual relies on the following exclusionary clause:

'This policy does not apply: (f) Under coverages AB(1) and C(1), to bodily injury * * * of * * * (4) if regularly residing in the insured's household, any relative or member of the family of an insured, even if working as an employee, unless specifically named in the declarations and included in the number of employees used in determining the premium * * *.'

Plaintiff is not named in the declarations in the policy. Thus this exclusion barred his coverage as a farm employee if he was a member of White's family at the time of the accident. The learned trial court determined that plaintiff was a member of White's family. We quote with approval from the trial court's memorandum opinion as follows:

'The petition for the appointment of a guardian ad litem for the plaintiff states that he was then a minor 12 years of age, and the briefs of counsel state that at the time of the accident in question he was about 11 1/2 years of age. It appears from the supplemental stipulation that he was living in the home of the defendant James J. White as a foster child, having been placed in said home by the Milwaukee County Department of Public Welfare, and the home of said James J. White was a licensed foster home at all times material herein. Under these facts and the terms of the policy, I am of the opinion that the plaintiff was a member of the family of James J. White, the named insured, within the meaning of the policy provisions. The county welfare department had the legal custody of the plaintiff child. They delegated that legal custody to James J. White when they licensed his home and placed the child in his home. Legal custody means the right to the care, custody and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education and discipline for a child. Section 48.02(10), Stats. One who is possessed of those rights and duties possesses and exercises the rights and duties of a parent and the relationship existing, is, for all practical purposes, that of parent and child. The very purpose in licensing a foster home and placing a child therein is to supply the parental and family relationship to a dependent, neglected or delinquent child. It is not necessary that one be a blood relative in order to be a member of a family. Duluth-Superior Milling Company v. Industrial Commission [1937], 226 Wis. 187, [275 N.W. 515, 276 N.W. 300]; Armstrong v. Industrial Commission [1915], 161 Wis. 530, . There are many cases in other jurisdictions holding to the same effect. See Schurler v. Industrial Commission [1935], 86 Utah 284, 43 P.2d 696; Fifth Avenue Estates, Inc. v. Weaver [1959], , 185 N.Y.S.2d 164, 165; Blachley v. Laba [1884], 63 Iowa 22, 18 N.W. 658; Dhonau v. Striebinger (Ohio [1904]), 24 [Ohio] Cir.Ct.R.,N.S., 598; DeRoller v. Bohan [1924], [211 App.Div. 46], 207 N.Y.S. 513, 516; L. J. Mueller Furnace Co. v. Dreibelbis (Mo. [1921]), 229 S.W. 240, 241.

'In Utah Fuel Co. v. Industrial Commission of Utah [1937], 91 Utah, 491, 64 P.2d 1287, the Utah court held, under terms of the Compensation Act dealing with dependency on deceased employee, that the term "member of the family,' means one whom the head of the family has taken into his home, to live with him, to share such comforts as the home may afford, and toward whom the head has assumed an attitude of parent, guardian or...