Lewis v. Bradley

• Decision Date: 26 June 1959
• Citation: 97 N.W.2d 408,7 Wis.2d 586
• Parties: Gertrude LEWIS, Plaintiff-Respondent, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant. Emma DALMAN, Plaintiff-Respondent, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant. Emma DALMAN, Exrx, etc., Plaintiff-Respondent, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant. John ZIMMERMAN et al., Plaintiffs-Respondents, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant.
• Court: Wisconsin Supreme Court

Page 408

97 N.W.2d 408

7 Wis.2d 586

Gertrude LEWIS, Plaintiff-Respondent, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant.

Emma DALMAN, Plaintiff-Respondent, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant.

Emma DALMAN, Exrx, etc., Plaintiff-Respondent, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant.

John ZIMMERMAN et al., Plaintiffs-Respondents, v. Raymond BRADLEY et al., Defendants-Respondents, Superior Mutual Ins. Co., Appellant.

Supreme Court of Wisconsin.

June 26, 1959.

Lehner, Lehner & Behling, Oconto Falls, J. P. Koberstein, Madison, for appellant.

Cohen & Parins, Green Bay, for plaintiff-respondent Gertrude Lewis.

Cornelisen, Denissen, Farrell & Kranzush, Green Bay, for Dalmans.

John Curtin, Algoma, for Zimmerman and others.

Everson, Ryan, Whitney & O'Melia, Green Bay, for Bradley and United States Fidelity & Guaranty Co.

Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for Milwaukee Auto. Mut. Ins. Co.

Melvin Dewane, Green Bay, for Raymond Bradley.

HALLOWS, Justice.

The sole question on this appeal is whether the appellant's automobile policy insuring the defendant while operating his Plymouth car insured him while driving the farm truck at the time of the accident. In its insuring agreements the policy provides in paragraph IV(a)(3):

'(a) Automobile. Except with respect to division 2 of coverage C and except where stated to the contrary, the word 'automobile' means:

'(3) Temporary Substitute Automobile--Under coverages A, B and division 1 of coverage C, an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;'.

The appellant contends: (1) the truck was not a substitute but an alternate automobile because the defendant had a key to the truck in his possession at all times and had the right to use the truck without first obtaining permission, and (2) there was no overt act of withdrawal of the Plymouth from normal use because of its breakdown.

Western Casualty & Surety Co. v. Norman, 5 Cir., 1952, 197 F.2d 67, and Everly v. Creech, 1956, 139 Cal.App.2d 651, 294 P.2d 109, are relied upon by the appellant for its first proposition. In the Norman case a partnership owned several trucks and cars, including a Ford, which was not in good mechanical condition and therefore its use was limited to a particular construction project. One of the partners owned an Oldsmobile, which he had used for business trips and was using on the trip when the accident occurred. The court held the Oldsmobile was not a temporary substitute for the Ford because although the Ford was being repaired at the time there was no showing the Ford would have been used for the trip. Therefore the Oldsmobile was not actually used as a substitute. To the same effect see State Automobile Insurance Ass'n v. Kooiman, D.C.S.D.1956, 143 F.Supp. 614, at page 622.

Here, however, the facts and the only reasonable inference to be drawn therefrom show that if the Plymouth had not broken down it would have been used on the trip. The defendant attempted to use the Plymouth, and would have used it if it would have started. The defendant had never used the farm truck before for pleasure purposes. The availability of the keys to the truck at all times and the right to use the truck do not make the truck an alternative car when in fact it had not been used as such.

Everly v. Creech, supra, involved the standard newly acquired automobile paragraph, not the temporary substitute automobile paragraph involved here. In that case the policy covered a 1949 Hudson owned by Everly, who had been using for some months before the accident a 1936 Ford owned by another for the same purposes he had used his Hudson. The court held that the Ford replaced the Hudson; that Everly was the owner of the Ford within the meaning of the policy, and since he had not given the required notice under the newly acquired automobile clause the policy was not in effect as to the Ford at the time of the accident. The type of use, possession and control exercised by Everly of the Ford were essentially different from the possession, use and control by the defendant of the farm truck. Neither of these cases are in point on their facts.

The purpose of this paragraph is to extend coverage temporarily and automatically, without the payment of an additional premium, to the insured to protect him when he uses an automobile not specified in the policy in place of the specified motor vehicle he intended normally to use but did not because of its withdrawal from use for a reason stated in the policy; Lloyds America v. Ferguson, 5 Cir., 1941, 116 F.2d 920; Farley v. American Automobile Ins. Co., 1952, 137 W.Va. 455, 72 S.E.2d 520, 34 A.L.R.2d 933.

From the cases the rule can be stated as follows: A substitute automobile within the meaning of the policy is one actually but only temporarily used in place of the specified automobile, i. e., for the same use the insured car would have been used except for its withdrawal from all normal use and while such withdrawal is because of its breakdown, repair, servicing, loss or destruction. Where the named automobile specified in the policy was low on gasoline and had heavy snow chains on its tires there was no breakdown and the car which was used was not a substitute for the named vehicle; Iowa Mutual Insurance Co. v. Addy, 1955, 132 Colo. 202, 286 P.2d 622. The fact that the auto which was used was more comfortable or in better working condition or more appropriate to the particular use did not qualify it as a substitute automobile or constitute a breakdown of the specified car in the policy; Erickson v. Genisot, 1948, 322 Mich. 303, 33 N.W.2d 803. Such autos are not withdrawn from normal use for the reasons stated in the policy. However, in Allstate Insurance Co. v. Roberts, 1958, 156 Cal.App.2d 755, 320 P.2d 90, it was held that although the Mercury named in the policy had been repaired but was still operating in a manner that the owner believed to be hazardous and should not be driven on the contemplated trip, it was withdrawn from normal use because of its breakdown when it was left at the home of the owner's wife with the keys and the wife's car used for the trip.

When the automobile specified in the policy is being operated for part of its normal use, the automobile not specified in the policy is not a substitute because the insured automobile has not been withdrawn from all normal use. Pennsylvania Casualty Co. v. Suburban Service Bus Co., Mo.App., 1948, 211 S.W.2d 524; Service Mutual Insurance Co. of Texas v. Chambers, Tex.Civ.App.1956, 289 S.W.2d 949; State Farm Mutual Automobile Ins. Co. v. Bass, 1951, 192 Tenn. 558, 241 S.W.2d 568; Erickson v. Genisot, supra, (no evidence the truck named in the policy was not being used.)

Fleckenstein v. Citizens' Mutual Automobile Ins. Co., 1950, 326 Mich. 591, 40 N.W.2d 733, and American Employers' Insurance Co. v. Maryland Casualty Co., 4 Cir., 1954, 218 F.2d 335, are cases holding the automobile used was a temporary substitute not owned by the...