Kietlinski v. Interstate Transp. Lines, Inc.

• Decision Date: 07 March 1958
• Citation: 88 N.W.2d 739,3 Wis.2d 451
• Parties: Lucille KIETLINSKI et al., Plaintiffs, v. INTERSTATE TRANSPORTATION LINES, Inc., et al., Respondents, Peerless Casualty Co., a foreign corporation, Appellant. Lucille KIETLINSKI et al., Plaintiffs, v. FIREMEN'S FUND INDEMNITY CO. et al., Respondents, Peerless Casualty Co., a foreign corporation, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 739

88 N.W.2d 739

3 Wis.2d 451

Lucille KIETLINSKI et al., Plaintiffs, v. INTERSTATE TRANSPORTATION LINES, Inc., et al., Respondents, Peerless Casualty Co., a foreign corporation, Appellant.

Lucille KIETLINSKI et al., Plaintiffs, v. FIREMEN'S FUND INDEMNITY CO. et al., Respondents, Peerless Casualty Co., a foreign corporation, et al., Appellants.

Supreme Court of Wisconsin.

March 7, 1958.

Bendinger, Hayes & Kluwin, Milwaukee, for appellants.

Ray T. McCann, Milwaukee, for Briggs Transfer Co. and Firemen's Fund Indemnity Co.

Charles C. Luetke, Minneapolis, Minn., for Interstate Transport Lines, Inc. and Harvey R. Cheesebrough, Jr., for respondents.

WINGERT, Justice.

We agree with the trial court that the asserted policy defenses must fail, and that the insurance provided by Iowa and Peerless was in force with respect to the accident in suit.

1. Ownership of described vehicles. The vehicles, two Autocar tractors and two semi-trailors, were described in the insurance policy issued by Iowa as being in the sole ownership of Interstate. Thus declaration 6 stated that 'The named insured is the sole owner of the automobile except as herein stated', no exception being specified, and insuring agreement VIII provided that 'This policy applies only to accidents which occur * * * while the automobile * * * is owned, maintained and used for the purposes stated as applicable thereto in the declarations.' Condition 22 of the policy provides that by accepting the policy, the insured agrees that the statements in the declaration are representations, and that 'this policy is issued in reliance on the truth of such representations'.

Iowa argues that the vehicles were owned by Cheesebrough, Sr., individually and not by Interstate, and that therefore the representation that the named insured, Interstate, was the sole owner of the vehicles was false, and that such misrepresentation avoided the policy. In support of its contention, Iowa refers to repeated instances in the record in which Cheesebrough, Sr., testified that he was the owner of the vehicles in question.

The trial court made no specific finding of fact on the subject of ownership, but stated in its opinion that the title of Cheesebrough, Sr., was 'at most an equitable one'. Since the matter is not covered in the formal findings, this statement in the opinion has the weight of a finding of fact.

We need consider the question of ownership only with respect to the Autocar tractors, for the insurance policy carried the following endorsement relative to trailers:

'It is agreed and understood that for the additional premium charged that the above policy will afford the insured coverage under coverages A and B for trailers while in his care, custody and control for purposes of being operated with either of the tractors insured under this policy and designated as Items 1 and 2 on the schedule.'

While Cheesebrough, Sr., testified that he was the owner of the vehicles, he also testified that 'I wouldn't say I was actually the owner of those vehicles covered in this policy, because they were transferred to Interstate'; that he told Iowa's agent through whom the insurance was written that Interstate owned the vehicles; that he was almost positive that he had transferred them to Interstate and that Interstate had title to them; that the titles were in Interstate's name; that the tractors were Interstate's tractors; that he put the title in Interstate for convenience only, since in order to get insurance on the vehicles it was necessary to show that Interstate was the owner; and that the vehicles were leased to Interstate on a yearly basis. This testimony abundantly sustains the trial court's determination that any title of Cheesebrough, Sr., was at most an equitable one. On Cheesebrough's own testimony, he would be estopped to assert ownership in himself in any way detrimental to Iowa.

The evidence clearly shows that title to the tractors had been transferred to Interstate and was registered with the state of Minnesota in the name of Interstate. This fact creates a presumption that Interstate was the owner. Kruse v. Weigand, 204 Wis. 195, 203, 235 N.W. 426. Iowa has not rebutted that presumption.

It may be conceded that Cheesebrough, Sr., probably retained a substantial interest in the tractors. We do not consider that 'sole ownership' within the meaning of the insurance policy necessarily excludes any and all interest on the part of someone else. In common usage, 'owner' is often equated to title-ownership. Thus sec. 85.10(16) Stat.1955 provides that the term 'owner' as used in the Motor Vehicle Code of this state means

'A person who holds the legal title of a vehicle; or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the condition stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner.'

We are not prepared to give a more restricted interpretation to the term 'owner' as used in Iowa's policy, which was drawn by the company and in case of doubt is to be construed against it. Without further discussion we hold that Iowa has failed to establish that the tractors in question were not 'owned' by Interstate within the meaning of the policy.

The policy defense must fail for another reason. Sec. 209.06(1) Stats. 1949 provides

'No oral or written statement, representation or warranty made by the insured or in his behalf in the negotiation of a contract of insurance shall be deemed material or defeat or avoid the policy, unless such statement, representation or warranty was false and made with intent to deceive, or unless the matter misrepresented or made a warranty increased the risk or contributed to the loss.'

We need not consider whether this statute is directly applicable, the insurance contract having been made in Minnesota or Iowa in contemplation of operation in Wisconsin by the insured and the claim arising out of an accident in Wisconsin. We have not been referred to any contrary law in Minnesota or Iowa, and may therefore assume that the law of those states on the subject is similar to ours. Elmergreen v. Weimer, 138 Wis. 112, 117, 119 N.W. 836.

Here there was no evidence that the representation that Interstate 'owned' the vehicles was made with intent to deceive, for there is no showing that Cheesebrough, Sr., understood that ownership represented any greater interest than that which Interstate had according to the evidence above mentioned. Neither is there any showing that the existence of the interest in the vehicles claimed by Cheesebrough increased the risk or contributed to the loss.

2. Substitution of tractor. At the time of the trip which resulted in the accident, one of the Autocar tractors described in the insurance policy was disabled and in the shop for repairs, and Cheesebrough, Sr., substituted for it a Federal tractor owned by him and not described in the insurance policy.

Coverage A of the policy insured Interstate with respect to personal injury liability arising out of the use of 'the automobile'. A subsequent provision of the policy defined 'automobile' to mean the motor vehicle described in the...