Locke v. Gen. Accident Fire & Life Assur. Corp.

• Decision Date: 12 April 1938
• Citation: 279 N.W. 55,227 Wis. 489
• Parties: LOCKE v. GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND, et al.
• Court: Wisconsin Supreme Court

227 Wis. 489

279 N.W. 55

LOCKE

v.GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND, et al.

Supreme Court of Wisconsin.

April 12, 1938.

Appeal from a judgment of the Circuit Court for Chippewa County; James Wickham, Judge.

Action by Ben Locke against the General Accident Fire & Life Assurance Corporation, Limited, of Perth, Scotland, and others, for damages arising out of an automobile collision. From an adverse judgment, plaintiff appeals.-[By Editorial Staff.]

Affirmed.

Action for damages arising out of an automobile collision which occurred on State Highway 29, in Chippewa county, on July 7, 1933. Action commenced September 8, 1936. Case was tried to the court and jury. The issues of negligence, contributory negligence, and damages were submitted to the jury upon a special verdict. The issue as to coverage under the policy of insurance issued by the respondent, Assurance Corporation, to the owner of the car, was submitted to the court. The special verdict, on all issues, was in favor of the plaintiff-appellant. On the issue of coverage, as to whether Carl Martinson, who was driving the automobile owned by the respondent Harry Larson at the time of collision, came within the terms of the “omnibus clause” of the insurance policy, the court found that, “No use or operation of the Larson car by Martinson was with or by the permission, knowledge or consent of Larson or of any member of Larson's family,” and as a conclusion of law, the court found that the insurance provided by the policy was not extended to or available to any person while the car described in the policy was used or operated by Carl Martinson or at the time of the plaintiff's injury. The court thereupon ordered judgment notwithstanding the verdict, dismissing the plaintiff's complaint on the merits with costs. The plaintiff appeals. The material facts will be stated in the opinion.Wiley, Wiley & Wiley, of Chippewa Falls, for appellant.

W. H. Stafford, Harold E. Stafford, and Marshall Norseng, all of Chippewa Falls, for respondents.

MARTIN, Justice.

The respondent Assurance Corporation, on July 9, 1932, issued the policy in question to its co-respondent, Harry Larson, owner of the automobile involved in the collision in question. The policy contained the following provision: “(B) Additional Assureds. The insurance provided by this policy is so extended as to be available, in the same manner and under the same provisions as it is available to the named assured, to any person or persons while riding in or legally operating any of the automobiles described in the declarations or to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or if the named assured is an individual, with the permission of an adult member of the named assured's household other than a chauffeur or a domestic servant, except that the extension provided for in this condition shall not be available to a public garage or a purchaser, etc.”

It appears that on July 5, 1933, the respondent Harry Larson permitted one P. L. Leach to use his car in going from Chippewa Falls to Albert Lea, Minn., and back to Chippewa Falls with the wife and minor child of said Leach, a trip which Leach desired to make for his own accommodation. Leach accompanied by his wife and son left Chippewa Falls on July, 5, 1933, and drove to Minneapolis. The wife and child remained in Minneapolis, and Mr. Leach drove on to Albert Lea, Minn. He returned to Minneapolis the following day and there purchased a new car of his own. On July 7, 1933, Leach asked his brother-in-law, Carl Martinson, to drive the Larson car from Minneapolis to Chippewa Falls. They all started for Chippewa Falls, Leach driving his new Ford, and Martinson driving the Larson car, Leach's wife and son riding with Martinson. On this trip from Minneapolis to Chippewa Falls, the Larson car, being driven by Martinson, became involved in the collision with the plaintiff's car, out of which collision this action arises.

The appellant contends that the trial court erred in its conclusion of law that the insurance coverage afforded by the “omnibus clause” of the policy was not available to the appellant.

Provision (B) of the policy, above quoted, is in accord with the requirements of section 204.30, Statutes 1931. The meaning of the policy as to extent of coverage must be determined by its own provisions and by section 204.30(3) of the Statutes. There is no conflict between the policy provisions and the provisions of the statute. The statute provides, section 204.30(3): “The coverage hereby afforded shall not apply unless the riding, use or operation above referred to be with the permission of the assured named in this policy, or if such assured is an individual, with the permission of an adult member of such assured's household other than a chauffeur or domestic servant.”

[1] Appellant's first contention is based upon the statutory provision: “Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile,” and upon the similar provision in the policy. In this connection, appellant argues that on being given permission to use the car to go to Albert Lea and return, Leach became a person “legally responsible” for the operation of the Larson car; that he was legally liable for the negligence of his agent, Martinson; and that because of this liability, Leach would have been entitled to claim the indemnity afforded by the policy, and therefore under the statutory provision plaintiff is entitled to claim directly the benefit of the insurance. In other words, appellant contends that the statute should be so interpreted because of the phrase, “legally responsible,” so as to cover, not only the person to whom the car is given by the named assured and who is operating the car within the terms of the bailment, but also any agent of the original bailee in the operation of the car. The operation by Martinson was without the knowledge or consent of Larson, the owner and named assured. The two provisions of the statute must be read together.

In Cullen v. Travelers' Ins. Co., 214 Wis. 467, 253 N.W. 382, a special driver's license under section 85.08(1a), Statutes, had been issued to the driver who was under sixteen years of age, making the parents legally responsible for his negligent operation of the car. Plaintiff, in this action, claimed that the policy covered the parents because of the provision in subsection (3) of section 204.30: “Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile.”

At page 470 of 214 Wis., 253 N.W. 382, 383, the court said: “‘Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile.’ However, neither of those provisions effected any enlargement or change in the coverage afforded by the policy as to any person entitled to the indemnity afforded thereby.”

In Bro. v. Standard Accident Ins. Co., 194 Wis. 293, 215 N.W. 431, the jury found that the defendant, Nicol, was operating the automobile at the time of the accident with the permission of Emmett Moran, who was an adult member of the household of the insured. Plaintiff had judgment on the verdict. Upon appeal, the court held that the finding of the jury that the car was being operated with the permission of Emmett Moran at the time of the accident was against the clear preponderance and great weight of the evidence and reversed the judgment. Mere presumption that permission had been given or would be given if asked is not sufficient.

This court said in Drewek v. Milwaukee Automobile Insurance Company, 207 Wis. 445, at pages 447, 448, 240 N.W. 881, that section 204.30 (3) was intended to avoid the breeding of litigation by uncertain and ambiguous provisions and should be construed liberally to suppress the mischief and advance the remedy which it was intended to afford. Stone v. Inter-State Exchange, 200 Wis. 585, 589, 229 N.W. 26.

[2] Prior to the enactment of chapter 372, section 2, of the Laws of 1925 (omnibus coverage provision), a policy of indemnity insurance on an automobile was considered a personal indemnity contract limiting coverage to those who contracted for it. The insurer was not liable when the car was driven by a person other than the assured unless the driver was within the rule of agency to the assured. Glatz v. General Accident, Fire & Life Assurance Corporation, 175 Wis. 42, 183 N.W. 683;Eberlein v. Fidelity & Deposit Co., 164 Wis. 242, 159 N.W. 553;Stenbom v. Brown-Corliss Engine Co., 137 Wis. 564, 119 N.W. 308, 20 L.R.A.,N.S., 956; Witzko v. Koenig, 224 Wis. 674, 272 N.W. 864. By chapter 372, section 2, Laws of 1925, coverage was required so as to extend the benefits of the policy to one driving with the permission of the named assured, irrespective of agency....