Meiser v. Aetna Cas. & Sur. Co.

• Decision Date: 03 November 1959
• Citation: 98 N.W.2d 919,8 Wis.2d 233
• Parties: George E. MEISER, Respondent, v. AETNA CASUALTY AND SURETY CO., a foreign corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 919

98 N.W.2d 919

8 Wis.2d 233

George E. MEISER, Respondent, v. AETNA CASUALTY AND SURETY CO., a foreign corporation, Appellant.

Supreme Court of Wisconsin.

Nov. 3, 1959.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Edmund W. Powell, Anton Motz, Milwaukee, of counsel, for appellant.

Kivett & Kasdorf, Milwaukee, Clifford C. Kasdorf, Milwaukee, of counsel, for respondent.

MARTIN, Chief Justice.

Appellant contends that when the respondent cleaned the plaster off the windows, the windows were property in his care, custody or control or property as to which he was exercising physical control.

Appellant argues that the exclusion phrase as to 'care, custody or control' is clear and unambiguous, citing first International Derrick & Equipment Co. v. Buxbaum, 3 Cir., 1957, 240 F.2d 536, 538. That was an action by the plaintiff derrick company, which had contracted to procure and install a metal tower and antenna mast for a broadcasting company, for loss sustained when equipment of the defendant, who had contracted to raise the mast, bent and caused the mast to fall and be damaged beyond repair. Following judgment against the defendant the derrick company sued defendant's insurer under a liability policy which excluded from coverage property in the care, custody or control of the insured.

A reading of the case discloses that the court resorted to cases which 'clarified' the care, custody or control exclusion phrase, holding as follows:

'Where the property damages is merely incidental to the property upon which the work is being performed by the insured, the exclusion is not applicable. (Citing cases) However, where the property damaged is under the supervision of the insured and is a necessary element of the work involved, the property is in the 'care, custody, or control' of the insured.'

The second case relied upon by appellant is Maryland Casualty Co. v. Holmsgaard, 1956, 10 Ill.App.2d 1, 133 N.E.2d 910. There the plaintiff insurance company brought suit for declaratory judgment for construction of a policy issued to one of the defendants, Grove, who operated a machine shop. Defendant Holmsgaard left his automobile in the Grove shop to have a trailer hitch welded beneath the car, and during the welding operation the automobile was destroyed by fire. The insurance policy excluded coverage of property in the care, custody or control of the insured, Grove. The court, while holding there was no ambiguity in the language of the exclusion, pointed out that it made no difference whether it was considered that the car was delivered into the possession of Grove as bailee for hire or that the car was in Grove's care, custody and control, because the facts were undisputed that Grove had possession of the car, had dominion over it, managed and controlled it and was in the act of working on it when the damage occurred. The court, however, emphasized the aspect of bailment for compensation, calling attention to the rule that under such circumstances the bailee's possession of the property is such as would entitle him to exclude the possession of others, even that of the bailor.

The third case cited by appellant on this point is Hardware Mut. Cas. Co. v. Mason-Moore-Tracy, Inc., 2 Cir., 1952, 194 F.2d 173, another declaratory judgment suit involving a manufacturer's and contractor's liability policy which was issued to the defendant in its business of moving machinery. In the process of removing heavy machinery from premises occupied by one Stewart, defendant suspended the machinery by a rope attached to the top of an elevator shaft, and during the course of the operations the rope broke and the elevator was damaged. The court held that defendant was 'using' the elevator at the time it fell and that the exclusion clause requiring that the insured be in 'control' of the damaged property was applicable, whether defendant's use was exclusive or in conjunction with others. The rationale of the decision clearly indicates that the court was construing the language of the exclusion clause.

Respondent calls attention to Boswell v. Travelers Indemnity Co., 1956, 38 N.J.Super. 599, 120 A.2d 250, 254, where the same exclusion clause was contained in a manufacturer's and contractor's liability policy issued by the defendant to the plaintiff, a boiler repair company. Plaintiff contracted with a realty corporation, the general contractor, to replace tubes in certain heat exchange units connected to a boiler. During the course of the boiler repairs plaintiff's employees mistakenly ran the water through the outer shell of the heating units and one of the shells cracked. In discussing the exclusion phrase, 'care, custody or control,' the New Jersey court stated:

'Such words are inherently ambiguous, for they are words of art which have been the focus of considerable judicial construction.'

The facts in the instant case show that appellant was uncertain as to the application of the exclusion clause in the circumstances here. When respondent first reported the loss, appellant's agent was not familiar with the type of coverage provided by respondent's policy but thought the loss would be covered and advised respondent to file a claim. After discussing the matter...