Krempel v. Noltze
| Decision Date | 04 February 1969 |
| Docket Number | No. 114,114 |
| Citation | 41 Wis.2d 454,164 N.W.2d 227 |
| Parties | Randolph H. KREMPEL, Respondent, v. John D. NOLTZE, Defendant, American Standard Insurance Co. of Wisconsin, Appellant. |
| Court | Wisconsin Supreme Court |
Lehman & Seymour, Elkhorn, for appellant.
Godfrey, Godfrey & Neshek, Elkhorn, for respondent.
The first issue presented on this appeal is whether defendant insurance company can defeat coverage by asserting the following provision in its insurance contract:
'This policy does not apply: under any of the coverages,
'a. to any automobile
'(3) while used in a prearranged racing or speed contest;'
For purposes of this appeal it is undisputed that defendant and plaintiff, as a guest in defendant's automobile, were engaged in a prearranged racing contest on a public highway as distinguished from a drag strip or other private racecourse.
To determine whether the quoted exclusion is lawful, the court must look to the following declarations of the legislature.
Sec. 204.34, Stats., sets forth a number of limitations on what can be excluded from coverage in an automobile insurance contract. It reads in part:
'(1) No policy of insurance, agreement of indemnity or bond covering liability or loss arising by reason of the ownership, maintenance or use of a motor vehicle issued in this state shall exclude from the coverage afforded or provisions as to benefits therein any of the following:
'(b) The operation, manipulation or use of such motor vehicle for unlawful purposes.'
Sec. 346.94(2), Stats., provides that it is unlawful to participate in any 'race or speed or endurance contest upon any highway.'
The trial court concluded that racing on a public highway is contrary to sec. 346.94(2), Stats., and is therefore an operation or use of a motor vehicle for an unlawful purpose within the meaning of sec. 204.34, Stats. We agree.
Defendant's automobile was being used for the purpose of transversing a length of public highway in a prearranged speed contest. That is unlawful under sec. 346.94(2), Stats., and encompasses a use of a motor vehicle for unlawful purposes within the meaning of sec. 204.34(1)(b).
Appellant argues that the word 'unlawful' is defined in Black's Law Dictionary (3d ed.) as 'That which is contrary to law or unauthorized by law.' Black also defines 'purpose' as 'That which one sets before him to accomplish; an end, intention, or aim, object, plan, project.' Thus appellant contends that the insured's purpose on September 9, 1967, at 10:40 p.m. was to 'race' or have a 'speed contest' and that a race or a speed contest is not in and of itself unlawful. Appellant concludes that because sec. 204.34(1)(b), Stats., applies only to unlawful purposes, the exclusion is proper. In substance, appellant would have this court deny coverage to the plaintiff on the theory that the defendant's purpose on September 9, 1967, was to 'race'--a proper and legal purpose--and not to careen down a public highway at 10:40 p.m. In other words, appellant contends that the definition of the word 'purpose' does not encompass the manner in which the race was conducted.
Appellant has applied the definition of 'purpose' too narrowly and the true issue is whether a prearranged speed contest on a public highway is a use of a motor vehicle for an unlawful purpose. We think that under sec. 204.34(1)(b), Stats., it is plain that it is.
In Pavelski v. Roginski, 1 wherein this court was dealing primarily with the omnibus clause, 2 the court stated:
3
Thus, it is clear that this...
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