Havlik v. Bittner

• Decision Date: 07 February 1956
• Parties: Anna HAVLIK, Plaintiff, v. Lloyd W. BITTNER, Sr., Respondent, National Farmers Union Property and Casualty Co., a foreign corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 798

74 N.W.2d 798

272 Wis. 71

Anna HAVLIK, Plaintiff, v. Lloyd W. BITTNER, Sr., Respondent National Farmers Union Property and Casualty Co., a foreign corporation, Appellant.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Schubring, Ryan, Petersen & Sutherland, James C. Herrick, Madison, for appellant.

Hill, Miller & Hill, Glenn R. Quale, Baraboo, for respondent.

BROADFOOT, Justice.

The insurance policy contained, among others, the following provisions:

'III Definition of 'Insured'

'With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof. * * *

'Exclusions

'This Policy Does Not Apply:

* * *

* * *

'(o) under Coverage A to the insured or any member of the family of the insured residing in the same household as the insured.'

The insurance company contends that the above quoted exclusion clause is valid and that a named insured riding in his own automobile as a passenger cannot recover from it for personal injuries received as a result of the negligence of another who is driving the insured's automobile with his permission.

This question has been presented for determination upon two prior occasions. In the case of Frye v. Thiege, 253 Wis. 596, 34 N.W.2d 793, this court upheld an exclusion clause in an automobile liability policy providing that the policy does not apply to bodily injury of any person who is a named insured; and stated that such an exclusion is not repugnant to section 204.30(3), Stats., and is not discriminatory as giving to an additional insured less protection than that given to the named insured as required by said statute. The same rule was affirmed in Musselman v. Mutual Automobile Ins. Co., 266 Wis. 387, 63 N.W.2d 691. The writer of this opinion has never agreed with the reasoning in the Frye case and dissented in the Musselman case. However, the rule enunciated in those decisions has become the law of this state, and unless some other reason can be found for affirming the order, it must be reversed.

Bittner, Sr., calls attention to the following conditions contained in the policy:

'8. Financial Responsibility Laws--Coverages A and B

'Such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not been obligated to make under the terms of this...