Hochgurtel v. San Felippo

• Decision Date: 17 May 1977
• Docket Number: 75-312,Nos. 75-311,s. 75-311
• Citation: 78 Wis.2d 70,253 N.W.2d 526
• Parties: Peggy M. HOCHGURTEL et al., Plaintiffs, v. Dominic SAN FELIPPO et al., Defendants, Robert H. Henningfeld, Defendant-Respondent, Milwaukee Mutual Insurance Company, Defendant-Appellant. Michael BIESIADNY et al., Plaintiffs, v. Stephen E. HENNINGFELD et al., Defendants, Robert H. Henningfeld, Defendant-Respondent, Milwaukee Mutual Insurance Company, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 526

253 N.W.2d 526

78 Wis.2d 70

Peggy M. HOCHGURTEL et al., Plaintiffs, v. Dominic SAN FELIPPO et al., Defendants, Robert H. Henningfeld, Defendant-Respondent, Milwaukee Mutual Insurance Company, Defendant-Appellant.

Michael BIESIADNY et al., Plaintiffs, v. Stephen E. HENNINGFELD et al., Defendants, Robert H. Henningfeld, Defendant-Respondent, Milwaukee Mutual Insurance Company, Defendant-Appellant.

Nos. 75-311, 75-312.

Supreme Court of Wisconsin.

Argued March 30, 1977.

Decided May 17, 1977.

L. William Staudenmaier, Milwaukee, (argued), for appellant, Milwaukee Mut. Ins. Co.; L. William Staudenmaier and Cook & Franke, S. C., Milwaukee, on brief.

Stephen C. deVries, Milwaukee (argued), for respondents Peggy M. Hochgurtel, et al.; deVries, Vlasak & Schallert, S. C., Milwaukee, on brief.

Nonald J. Lewis, Milwaukee, (argued), for respondents Dominic San Felippo, et al.; Nonald J. Lewis, John E. Schapekahm and Kasdorf, Dall, Lewis & Swietlik, Milwaukee, on brief.

John Kluwin, Milwaukee, (argued), for the respondent Robert H. Henningfeld; Kluwin, Dunphy, Hankin & McNulty, Milwaukee, on brief and Joseph E. Boyle, Burlington, of counsel.

Howard A. Davis, Milwaukee (argued), for respondent Michael Biesiadny; Howard A. Davis and Habush, Gillick, Habush, David & Murphy, Milwaukee, on brief.

ABRAHAMSON, Justice.

Shortly after he became sixteen years of age Stephen Henningfeld obtained a Wisconsin driver's license with the sponsorship of his father, Robert Henningfeld. During August 1970, Stephen, age sixteen years and ten months, was employed as he had been in the two previous summers, on a sod farm owned by Joseph and Dominic San Felippo. On August 25, 1970, while driving a 1965 Ford, series F-750, cab over engine truck owned by the San Felippo brothers and while making a delivery of sod, Stephen was involved in an accident in western Milwaukee county. Mrs. Peggy Hochgurtel and her children sustained injury when the truck landed on the Hochgurtel auto. Michael Biesiadny, who was a passenger in the truck and a fellow employee of Stephen at the sod farm, was also injured in the mishap. Subsequently, the Hochgurtels and Michael Biesiadny filed separate suits to recover for their injuries and losses. Robert Henningfeld and his insurance carrier, Milwaukee Mutual Insurance Company, the appellant here, were named as defendants in both actions under the authority of sec. 343.15(2), Stats. ¹

The Hochgurtel and Biesiadny actions were consolidated for purposes of trial, and the issue of Milwaukee Mutual's coverage of Robert Henningfeld (as a sponsor of Stephen) was tried separately. At the trial the court determined that the truck was a non-owned automobile within the terms of the policy, and therefore the policy provided coverage. This appeal followed. Additional facts are set forth below.

There are three issues on appeal:

I. Did the trial court err in determining that the San Felippo truck had only four wheels?

II. Did the trial court err in determining that the San Felippo truck was not furnished or available for the regular use of Stephen Henningfeld, a resident of the named insured's household?

III. Did the trial court err in failing to state separately its findings of fact and conclusions of law?

I.

The appellant contends that the trial court erred in deciding that the sod truck was a four-wheel vehicle under the policy's terms. The language of the policy which is pertinent is as follows:

" 'non-owned automobile' means a four wheel land motor vehicle or trailer not owned or furnished or available for the regular use of either the named insured or any resident of the same household, other than a temporary substitute automobile."

If the truck is a four-wheel vehicle it is a "non-owned automobile," assuming other conditions are met, and there is coverage; if it is a six-wheel vehicle (not a "non-owned automobile"), there is no coverage.

The issue whether the sod truck is a four-wheel vehicle has been before this court previously. In Biesiadny v. Henningfeld, 65 Wis.2d 88, 90, 221 N.W.2d 690 (1974), Milwaukee Mutual appealed a denial of summary judgment, arguing that the sod truck had six wheels and was therefore not within the policy definition of a "non-owned automobile." The photographs of the sod truck clearly showed side-by-side tires on the rear wheels. It was and is conceded the truck has six tires, two front, four rear. The question then and now is whether the truck has four wheels or six wheels. This court affirmed the trial court's order denying the motion for summary judgment, holding that more evidence was needed to determine the definition of wheels and the design of the sod truck.

Based on this court's decision in Biesiadny, the trial court permitted witnesses from the trucking industry to describe the "cast spoke wheels" on the rear of the sod truck and to compare that type of wheel to the "disc wheel" commonly found on passenger automobiles. One witness brought into the courtroom an entire assembly including tires, rims, a spacer which separates the rims and a cast spoke wheel. Photographs of the assembly are in the record. Pictures from trade publications of different types of wheels were also introduced into evidence.

Milwaukee Mutual does not quarrel with the testimony of the witnesses that from a technical and industrial standpoint this truck has four wheels. Milwaukee Mutual argues that the trial court should not have relied on these witnesses to make a finding as to the meaning of the word "wheel," but rather the judge should have determined what the word "wheel" meant to the average lay person. Mutual correctly notes that in interpreting and construing the policy " 'the ultimate objective is to ascertain the true intention of the parties' " and that "(w)ords used in insurance contracts ' . . . are to be given the common and ordinary meaning which they have in the minds of the average layman.' " Schmidt v. Luchterhand, 62 Wis.2d 125, 132-133, 214 N.W.2d 393, 396 (1974).

The general rule is to construe statutory language according to the popular, common and approved usage. Sec. 990.01(1), Stats.; State Bank of Drummond V. Neusse, 13 Wis.2d 74, 78, 108 N.W.2d 283 (1961). In H. Samuels Co. v. Department of Revenue, 70 Wis.2d 1076, 1085, 1086, 236 N.W.2d 250 (1975), this court had to interpret sec. 77.51(27), Stats., that referred to an article produced by a "process regularly regarded as manufacturing." The Department of Revenue contended that the phrase "process popularly regarded as manufacturing" should be interpreted according to the views taken by "the man on the street." The court noted that no effort was made to show the views of "the man on the street" and that rational decisions to determine the meaning of a statute cannot be reached using such an approach. The court held that the statute could only be "applied with reference to the opinions of those conversant with the subject matter involved." See also Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680 (1956).

We hold that the testimony relating to the meaning of the word "wheel" and to the design of the truck in question was properly admitted by the trial court. Here witnesses familiar with motor vehicles testified about "wheels" generally and the design of the truck in question specifically. Milwaukee Mutual did not show how the average person on the street would view the particular truck in question. All Milwaukee Mutual could show was that in everyday parlance people might use the words wheel and tire interchangeably. While a layperson or expert may at times use the terms carelessly, upon reflection he or she will usually agree that the tire is an object separate from the wheel.

The applicable meaning of the words in an insurance policy should be determined by the meaning given to them by the informed person. The trial court properly admitted the industry representative's testimony, and we conclude that the court was correct in ruling that the sod truck was a four-wheel vehicle within the terms of the policy.

II.

Milwaukee Mutual contends that the trial court erroneously interpreted the applicable law in holding that the truck was not "furnished or available" for Stephen Henningfeld's "regular use," as these words are used in the policy definition of "non-owned automobile." The purpose of this policy provision is to provide coverage to the insured while he or she has only infrequent or merely casual use of a vehicle other than one described in the policy, but not to cover the insured (or a member of the insured's household) against personal liability with respect to the use of a vehicle which the insured frequently uses or has the opportunity to do so as that increases the risk to an insurance company without a corresponding increase in premium. ² The greatly added risk which insurers are unwilling to incur for a single premium is the multiplicity of potential liability situations where a non-owned vehicle is regularly used or available for regular use. Under the terms of the policy in question the insurer had contracted to take on the potential liability of a four-wheel sod truck not regularly used or available for regular use.

The definition of "regular use" has been considered by the courts of numerous jurisdictions. ³ This court has considered the policy language in a number of cases. ⁴

No absolute definition has been or can be established for the term "available or furnished for regular use." This court has said that the interpretation and application of the term "regular use" in the policy depends upon the particular facts and circumstances in each case.

"The meaning of the words 'regular use' in an automobile insurance policy such as is involved here is one that has frequently been before the courts. Obviously, each case which arises under this clause must turn on its own peculiar facts. On each end of the spectrum are the easy cases. If the use of the auto is sporadic and rigidly restricted,...