Mauel v. Wis. Auto. Ins. Co.

• Decision Date: 11 April 1933
• Citation: 211 Wis. 230,248 N.W. 121
• Parties: MAUEL v. WISCONSIN AUTOMOBILE INS. CO., LIMITED, MUTUAL.
• Court: Wisconsin Supreme Court

211 Wis. 230

248 N.W. 121

MAUEL

v.WISCONSIN AUTOMOBILE INS. CO., LIMITED, MUTUAL.

Supreme Court of Wisconsin.

April 11, 1933.

Appeal from an order of the Circuit Court for Waupaca County; Byron B. Park, Circuit Judge.

Action by Carson Mauel, by John Mauel, his guardian ad litem, against the Wisconsin Automobile Insurance Company, Limited, Mutual. From an order sustaining a demurrer to the complaint, the plaintiff appeals.--[By Editorial Staff.]

Order affirmed.

Action begun in September, 1932, and order entered November 1, 1932.

Plaintiff seeks to recover damages because of injury in an automobile accident, and alleges:

“That on the 2nd day of July, 1930, Carson Mauel was riding in an automobile operated and driven by one Bernard Knapp, which said automobile was the property of Bernhagen & Poepp, operators of a garage in the village of Embarrass, Wisconsin, and was operated and driven by the said Bernard Knapp with the express permission of the said Bernhagen & Poepp; that said automobile * * * was the property of Bernhagen & Poepp, * * * loaned to the said Bernard Knapp for the purpose of driving and using the same, with a view of his buying the said Essex coach; * * * the said Bernard Knapp carelessly and negligently operated said automobile so as to cause great and serious injury to the said Carson Mauel; that thereafter the said Carson Mauel, his guardian ad litem, brought an action against the said Bernard Knapp, in the circuit court for Waupaca County, because of said negligent operation of said automobile, and recovered a verdict in said action upon which judgment was entered in favor of the above named plaintiff and against Bernard Knapp. * * * In the action so commenced as above indicated * * * the owner of said Essex coach, to-wit, Bernhagen & Poepp, were joined as parties defendant, * * * but said action was dismissed as to them for the reason that it was determined therein by the court that Bernard Knapp at the time he so operated said automobile was not engaged in the course of employment for Bernhagen & Poepp and because thereof said Bernhagen & Poepp, copartners, were not liable for the negligent operation of said automobile on the part of Bernard Knapp.”

There are further allegations to the effect that Knapp operated the machine with the consent of the owners, and that the defendant issued its policy insuring Bernhagen & Poepp against loss by reason of the liability imposed upon the assured Bernhagen & Poepp on account of bodily injuries accidentally suffered by reason of the ownership or operation of any automobile incidental to and necessary in the conduct of their business. Other allegations relevant to the questions raised on this appeal will be referred to in the opinion. There was a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. From the order sustaining the demurrer, this appeal is taken.Eberlein & Larson, of Shawano, for appellant.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondent.

FAIRCHILD, Justice.

After the owners of the garage were discharged by the court in the action begun against them as described in the complaint, an execution was issued against Knapp to recover the amount of damages awarded against him; the execution was returned wholly unsatisfied. No appeal was taken from the judgment discharging the owners of the garage who were the assured under the policy with which we are concerned. This policy states clearly that the assured were protected against liability imposed by law, and that the insurer undertook the payment of any such liability.

The learned trial judge declared himself to be of the opinion that the policy in question covered the garage operations only and insured the owners against liability for negligence of agents and employees in the performance of duties; that Knapp, who at the time was driving a car for the purpose of deciding whether or not to purchase it, was a bailee, and not acting in any capacity for the garage, and therefore was not covered by the policy. The stipulation in the contract of insurance is as follows: “Against loss by reason of the liability imposed by law upon the assured on account--

1.--Bodily injuries * * * accidentally suffered * * * by reason of the maintenance, conduct and operation of the * * * garage * * * at the location described herein; * * * incidental to and necessary in the conduct of the business of the assured. * * *” Unless the statute which makes provision for extended coverage adds something more to the terms of this policy, the stipulation just quoted limits responsibility of the respondent to liabilities of the garage, and requires the sustaining of the demurrer to the complaint.

[1] The appellant under the pleading is confronted with a situation in which the assured have been exonerated from any and all liability in connection with the accident. When the trial of the issues between the owners of the garage and the plaintiff occurred, the circuit court discharged the owners from the action against...