Home Mut. Ins. Co. v. Insurance Co. of North America
| Citation | 121 N.W.2d 275,20 Wis.2d 48 |
| Parties | HOME MUTUAL INSURANCE COMPANY, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, a foreign corporation, Respondent. |
| Decision Date | 30 April 1963 |
| Court | United States State Supreme Court of Wisconsin |
Byrne, Bubolz & Spanagel, Appleton, William S. Pfankuch, Appleton, of counsel, for appellant.
Peickert, Anderson & Fisher, Stevens Point, Gerald M. O'Brien and John E. Shannon, Jr., Stevens Point, of counsel, for respondent.
The sole issue in this case is whether the negligent acts of Frank Suchon, a Texaco station employee, even though occurring on the premises of Super Service, were 'incidental to' or 'in connection with' the operation of the Texaco station, bringing the mishap within the hazards covered by the INA policy as described in its policy as follows:
'The ownership, maintenance or use of the premises for the purpose of an automobile repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the use in connection with the above defined operations of any automobile not owned or hired by the named insured, a partner therein or a member of the household of any such person.' (Emphasis added.)
The Home Mutual policy contained an identical provision.
Both parties contend, and we agree, that this is a case of first impression in Wisconsin.
The whole controversy involves an interpretation of the quoted language used in the INA policy. The established rule, of course, is that in interpreting and construing an insurance contract (in fact, all contracts), the objective should be to ascertain the true intention of the parties. Aero Motive Sales Corp. v. Wausau Motor Parts Co. (1950), 256 Wis. 586, 42 N.W.2d 141; Siler v. Read Investment Co. (1956), 273 Wis. 255, 77 N.W.2d 504. A subordinate ruling is that in ascertaining the intention of the parties, a practical construction is most persuasive. Taylor v. Hill (1893), 86 Wis. 99, 56 N.W. 738; Carlson v. Scandia Life Ins. Co. (1919), 170 Wis. 342, 174 N.W. 896; Prudential Ins. Co. v. Paris Mut. Fire Ins. Co. (1933), 213 Wis. 63, 250 N.W. 851. Each of the policies here contains the same provision actually defining the word 'premises' so as to limit that word to the actual filling station and the ways immediately adjoining. Both of the policies also extend coverage to 'operations necessary or incidental thereto' (meaning operations necessary or incidental to the business designated).
There have been no cases holding the type of operation here to be 'incidental to' the operation of the Texaco station as distinguished from the Super Service station. Counsel for Home Mutual relies on four non-Wisconsin cases, all of which clearly involve an operation 'incidental to' the conduct of a garage business. In each case there is a very positive relationship between the third party customer and the garage and it is very obvious that the service being rendered is as a result of a direct contract made between the customer and the garage. Thus in General Finance Co. v. Pennsylvania Threshermen & Farmers Mut. Casualty Ins. Co. (1944), 348 Pa. 358, 35 A.2d 409, an independent contractor was hired by the plaintiff to go and pick and while en route there was an accident. The court held that the activity of repossessing automobiles was incidental to the primary business of the insured and that therefore there was coverage. In Lloyds Casualty Insurer v. McCrary (1950), 149 Tex. 172, 229 S.W.2d 605, an accident occurred when the insured appliance company was in the process, off the premises, of installing an appliance in the home of a customer who had purchased the appliance. Again the court held that this was incidental to the main activity of the company, even though the accident did not take place on its actual premises. In Arditi v. Massachusetts Bonding and Insurance Co. (Mo. 1958), 315 S.W.2d 736, coverage was ruled where an insured had repaired a truck and was...
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