Johnson v. Maryland Casualty Co., 25 Civ.

• Decision Date: 09 October 1940
• Docket Number: No. 25 Civ.,25 Civ.
• Citation: 34 F. Supp. 870
• Parties: JOHNSON v. MARYLAND CASUALTY CO.
• Court: U.S. District Court — Western District of Wisconsin

34 F. Supp. 870

JOHNSON v. MARYLAND CASUALTY CO.

No. 25 Civ.

District Court, W. D. Wisconsin.

October 9, 1940.

L. R. McPherson, John C. Fritschler (of Hanitch, Johnson, Fritschler & Barstow), all of Superior, Wis., for plaintiff.

Donald A. Rock, of Superior, Wis. (J. R. Zuger, of Duluth, Minn., of counsel), for defendant.

STONE, District Judge.

On March 21, 1939, plaintiff sustained personal injuries as the result of a collision between his automobile and an automobile owned by Swift & Company and then operated by John Wirth, its salesman. The plaintiff thereafter commenced an action against Swift & Company and John Wirth to recover damages he suffered in the collision, and obtained judgment in the Circuit Court of Douglas County, Wisconsin, for $5,278 against John Wirth. The action was dismissed on the merits as against Swift & Company. In an effort to collect the amount due on the judgment, the plaintiff commenced this action against the Maryland Casualty Company, which had issued its policy of automobile liability insurance to Swift & Company covering the automobile involved in the accident.

The parties hereto have stipulated as follows:

"The parties to this action hereby stipulate that the following stated facts are correct and may be considered by the Court in its disposition of the motions of the Plaintiff and Defendant for judgment:

"1. That the policy on which suit is brought is as pleaded in the Defendant's answer. This policy is a blanket policy and covers all automobiles owned by Swift & Company in the various states. The policy was executed in the State of Illinois.

"2. That Swift & Company maintain a branch office in the City of Duluth in the State of Minnesota and from that branch carry on business in the northern part of the State of Minnesota and in the City of Superior, Wisconsin.

"3. That in connection with the operation of the branch office in Duluth, Swift & Company own and operate a number of automobiles which are garaged in the City of Duluth.

"4. That the automobile involved in the accident of March 21, 1939 was one of the automobiles owned by Swift & Company and covered by the insurance policy heretofore described; that when the policy was written, the car involved in the accident was garaged in Duluth, Minnesota, and was customarily used in the City of Duluth in the State of Minnesota and in the City of Superior in the State of Wisconsin by one John Wirth, who was employed by Swift & Company as salesman and collector.

"5. That John Wirth on the date of the accident, March 21, 1939, was in the employ of Swift & Company and in the forenoon and afternoon up until 5 o'clock used the automobile involved in the accident in the course of his employment with the permission of Swift & Company, which was given to him at the branch office in Duluth, Minnesota; that Wirth's instructions from Swift & Company were to the effect that at the close of the working day about 5 o'clock P. M. he was to stop soliciting business or collecting accounts and return the automobile to the garage in the City of Duluth in the State of Minnesota.

"6. That on March 21, 1939 at about 5 o'clock when Wirth had completed his day's work, he did not return the car to the garage in Duluth, but in violation of instructions retained possession of the car in the City of Superior; that after making his last collection he took several drinks of beer in a tavern in the City of Superior in violation of the instructions of Swift & Company forbidding employees while in the possession of a Company automobile to drink intoxicating liquor; that while in the tavern he met a lady friend and invited her to have dinner at Dreamland, a tavern located some five miles south of the City limits of the City of Superior and in...