McDonald v. Bituminous Cas. Corp.

• Decision Date: 04 October 1960
• Citation: 105 N.W.2d 312,11 Wis.2d 202
• Parties: Kenneth McDONALD, Respondent, v. BITUMINOUS CASUALTY CORP., a corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 312

105 N.W.2d 312

11 Wis.2d 202

Kenneth McDONALD, Respondent, v. BITUMINOUS CASUALTY CORP., a corporation, Appellant.

Supreme Court of Wisconsin.

Oct. 4, 1960.

Schlotthauer & Jenswold, Madison, for appellant.

Hart, Kraege, Jackman & Wightman, Madison, for respondent.

MARTIN, Chief Justice.

Plaintiff's business is that of removing and trimming trees, and services related thereto. Prior to June 21, 1955 defendant issued its manufacturer's and contractor's liability insurance policy to plaintiff, providing coverage for injury or damage, for which insured would be liable, arising out of certain enumerated hazards, including the taking down and removal of trees. The policy contained, among others, the following exclusion:

'This policy does not apply:

'(a) under division 1 of the Definition of Hazards, to the ownership, maintenance, operation, use, loading or unloading of (1) automobiles * * * if the accident occurs away from the premises * * *.'

The 'premises' were the plaintiff's business premises, 317 West Broadway, Madison, Wisconsin.

On June 21, 1955 McDonald was engaged in taking down two trees on the property of Robert C. Cashin and Suzanne Delzell Cashin on Regent Street in the city of Madison. The first tree was removed without incident. The second was an oak about 24 inches in diameter and 40 feet high. It stood close to the edge of the Cashin property, about 12 feet west of the house of a neighbor, LaBella. McDonald testified that 'It was an awful lopsided tree and all of the branches were sticking out over the LaBella home.'

Intending to fell the tree to the south, McDonald tied a rope near the top, notched the tree on the south side, and tied the rope to the bumper of his truck. He then cut in on the back side of the tree and he and two employees pulled on the rope by hand but could not pull the tree over. Thereafter they tried pulling it with the truck, but having no success, they hooked a Jeep on the truck by chain, intending to use both vehicles to pull over the tree. McDonald started the Jeep and as the chain tightened between it and the truck 'the timing gear went on the Jeep;' the motor stopped and McDonald stepped out to 'figure out what to do next.' The rope between the tree and the truck was 'snug' but neither the Jeep nor the truck had moved. About two minutes after McDonald got out of the Jeep the tree fell sideways, striking the LaBella house and causing the damage out of which this action arises.

The LaBellas commenced an action against McDonald, the defense of which was tendered to the insurance company and rejected. McDonald thereupon settled the case with the LaBellas and commenced this suit against his insurance company for recovery of the settlement. The only testimony taken in this action was that of the plaintiff, Kenneth McDonald. After his testimony was in, plaintiff's motion for a directed verdict was granted by the trial court.

As stated in Rusch v. Sentinel-News Co., 1933, 212 Wis. 530, 533, 250 N.W. 405, 406:

'The law is well established that a verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased...