Newberger v. Pokrass
| Decision Date | 27 April 1965 |
| Citation | 134 N.W.2d 495,27 Wis.2d 405 |
| Parties | Melvin C. NEWBERGER, Appellant, v. Irving M. POKRASS et al., as Exrs. of the Estate of Willard G. Pokrass, decd., Defendants, Lumbermens Mutual Casualty Co., Respondent. |
| Court | Wisconsin Supreme Court |
Stern & Lee, Milwaukee, for appellant.
Arnold, Murray & O'Neill, Milwaukee, for defendant-respondent Lumbermens Mut. Cas. Co.
Direct-Action Against Insurer.
The principal question before us is whether an airplane is a motor vehicle within the meaning of sec. 260.11(1), Stats.
In Gridley v. Cardenas (1958), 3 Wis.2d 623, 89 N.W.2d 286, there was an airplane accident in Florida, and, although the action was brought in Wisconsin, it was determined that Florida law controlled. An issue was presented as to whether an airplane was a motor vehicle under the Florida guest statute. This court concluded that the term 'motor vehicle' did not include an aircraft, stating, at page 627, 89 N.W.2d at page 288:
'The Florida guest statute was enacted and made applicable to
In McBoyle v. United States (1931), 283 U.S. 25, 26, 51 S.Ct. 340, 75 L.Ed. 816, the United States supreme court held that an airplane was not a motor vehicle within the meaning of the National Motor Vehicle Theft Act. For other cases holding that an airplane is not a motor vehicle see Byrd v. Piedmont Aviation, Inc. (1962), 256 N.C. 684, 124 S.E.2d 880; In re Estate of Hayden (1953), 174 Kan. 140, 254 P.2d 813, 36 A.L.R.2d 1278; Rich v. Finley (1949), 325 Mass. 99, 89 N.E.2d 213, 12 A.L.R.2d 669.
The appellant urges that an aircraft is a motor vehicle which is operated on a 'highway in the sky.' There is a poetic charm to this contention, but we do not believe that it is consonant with the narrower meaning which this court has given to the term 'motor vehicle' in Rice v. Gruetzmacher (Wis.1965), 133 N.W.2d 401; Snorek v. Boyle (1962), 18 Wis.2d 202, 118 N.W.2d 132; Smedley v. Milwaukee Automobile Ins. Co. (1961), 12 Wis.2d 460, 107 N.W.2d 625; and Gridley v. Cardenas (1958), 3 Wis.2d 623, 89 N.W.2d 286.
In our recent decision in Rice v. Gruetzmacher, supra, we did not reach the question whether the insurer of a self-propelled-land-vehicle (e. g., an automobile) which was primarily designed to transport people or goods upon a highway could be sued directly in the event such a vehicle had an accident off a highway. In Rice, we observed that a forklift was in 'a class of self-propelled-land-vehicles which are designed primarily for uses dissimilar to transporting or drawing persons or property upon a highway' (emphasis added); such a vehicle, we held, is not a motor vehicle under the direct-action statutes unless operated upon a highway at the time of the accident. Since the Rice Case was concerned with a certain type of land vehicle, its ruling is not directly determinative of the case at bar.
However, in view of the restrictive nature of this court's decisions concerning sec. 260.11(1), Stats., and also in view of our ruling in Gridley v. Cardenas, supra, we now expressly hold that an airplane in flight is not a motor vehicle under sec. 260.11(1). Therefore, the trial court was correct in dismissing the action against the insurer since direct-action against it is barred by the policy.
Appealability of the Order.
The circuit court's order dismissed...
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McReynolds v. Municipal Court of City of Ottumwa
...American Flyers Airline Corporation, 443 P.2d 961 (Okl.1968); State v. Work, 75 Wash.2d 204, 449 P.2d 806 (1969); Newberger v. Pokrass, 27 Wis.2d 405, 134 N.W.2d 495 (1965); Gridley v. Cardenas, 3 Wis.2d 623, 89 N.W.2d 286 The general holding is thus distilled in the annotation found at 165......
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...Snorek v. Boyle (1962), 18 Wis.2d 202, 118 N.W.2d 132; Rice v. Gruetzmacher (1965), 27 Wis.2d 46, 133 N.W.2d 401; Newberger v. Pokrass (1965), 27 Wis.2d 405, 134 N.W.2d 495; Neumann v. Wisconsin Natural Gas Co. (1965), 27 Wis.2d 410, 134 N.W.2d However, in 1965, in Frye v. Angst, 28 Wis.2d ......
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