Kubiak v. General Acc. Fire & Life Assur. Corp.

• Decision Date: 09 January 1962
• Citation: 113 N.W.2d 46,15 Wis.2d 344
• Parties: Leona KUBIAK et al., Appellants, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORP., Ltd., a foreign corporation et al., Respondents.
• Court: Wisconsin Supreme Court

Page 46

113 N.W.2d 46

15 Wis.2d 344

Leona KUBIAK et al., Appellants, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORP., Ltd., a foreign corporation et al., Respondents.

Supreme Court of Wisconsin.

Jan. 9, 1962.

An action arising out of an automobile collision. The accident occurred on April 19, 1960, when defendant, Donald J. Kuhlman, an employee of the city of Milwaukee, ran into and collided with the automobile owned and driven by the plaintiff, Leona Kubiak, at the intersection of West Walnut street and North Twenty-Seventh street, Milwaukee, Wisconsin. Kuhlman demurred to the plaintiffs' amended complaint, which demurrer was overruled by the trial court on October 14, 1960. The defendant city of Milwaukee also demurred to the complaint and that demurrer was overruled by the trial court in a memorandum opinion dated April 18, 1961. General Accident Fire and Life Assurance Corporation filed an answer setting forth a general denial together with supporting affidavits and moved for summary judgment on the ground that there was no insurance coverage. The trial court granted the motion for summary judgment and dismissed the complaint against General Accident Fire and Life Assurance Corporation. Plaintiffs appeal from this summary judgment.

Ray T. McCann, Milwaukee, Leonard L. Loeb, Milwaukee, of counsel, for appellants.

Arnold, Philipp, Murray & O'Neill, Milwaukee, James P. O'Neill, Milwaukee, of counsel, for respondents.

DIETERICH, Justice.

The only issue presented on this appeal is whether the defendant-respondent, General Accident Fire and Life Assurance Corporation's automobile fleet policy and affidavits set forth sufficient evidentiary facts, including documents, so as to establish that the automobile fleet policy of insurance issued by it did not provide coverage for the defendant, Donald J. Kuhlman.

If there are any unresolved material questions of fact existing in the record the court will not grant summary judgment, for it is the function of the court to determine if such questions exist and not to resolve material questions of fact or to draw inferences which may be doubtful or uncertain. Zezblatt v. Sampson (1961), 12 Wis.2d 303, 107 N.W.2d 122. The rules governing the granting and denial of motions for summary judgment were summarized in Voysey v. Labisky (1960), 10 Wis.2d 274, 277, 103 N.W.2d 9, and quoted with approval in the Zezblatt Case, supra (p. 309, 107 N.W.2d p. 125), as follows:

"The rule is well established in this state that when it is shown there is a substantial issue of fact, or when the evidence on a material issue is in conflict, or if the inferences to be drawn from credible evidence are doubtful and uncertain, the motion for summary judgment should be denied. Likewise, when there is credible evidence which under any reasonable view will either support or admit of an inference in support or in denial of a claim of either party, it is for the jury to draw the proper inference and not for the court to determine which of two or more permissible inferences should prevail. Elder v. Sage, 1950, 257 Wis. 214, 42 N.W.2d 919. We have often said that the power of the courts under the summary-judgment statute (sec. 270.635, 33 W.S.A., p. 309 is drastic and should be exercised only when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. * * *"

On November 4, 1960, defendant, Donald J. Kuhlman, testified on adverse examination that at the time of the accident he was employed by the city of Milwaukee, in the street sanitation department, that he worked from 7:30 a. m. to 3:30 p. m., and that the collision occurred 'about a quarter after 3.' He further testified that on orders from one Bill Krause he was taking tools in his car to a job that was to start the following day, and that at that time there were no city-owned vehicles available to carry the tools.

After the adverse examination, Kuhlman was again examined on his own behalf, and testified that he was employed by the city of Milwaukee as a laborer on a city ash crew and that the tools he moved in his car were ashman's tools; that he had knowledge of two or three instances when city supervisors used city crew members to transport city tools with their own automobile; that Krause had done this before and that Krause was notified of the accident the day following its occurrence.

The defendant-respondent, General Accident Fire and Life Assurance Corporation, in support of its motion for summary judgment attached to its supporting affidavit a copy of its policy of insurance and endorsements. One endorsement attached to the policy is the 'Automobile Fleet Plan' which includes a schedule which was to list all automobiles owned by the insured. No such list is given, instead there is typed on the schedule the words 'See Schedule Attached.' No schedule is in fact attached. However, there is an affidavit by Lloyd D. Knapp, Commissioner of Public Works for the city of Milwaukee in which he states that:

'He is in possession of and has ultimate supervision and control of the policy * * * including the schedule of vehicles covered * * * under said accident policy; * * * that * * * said schedule of vehicles covered, did not and does not include the automobile owned and operated by Donald J. Kuhlman * * *'

In sec. III--Definition of Insured the policy states:

'(a) * * * the unqualified word 'insured' includes the named insured and, * * * includes any...