Pavelski v. Roginski

• Decision Date: 26 June 1957
• Citation: 84 N.W.2d 84,1 Wis.2d 345
• Parties: Della PAVELSKI et al., Plaintiffs and Appellants, v. Orville F. ROGINSKI, Defendant and Appellant, General Casualty Co. of America, a foreign corporation, Defendant and Respondent, Great American Indemnity Co. of New York, a foreign corporation, Interpleaded Defendant and Appellant. Jerome PRUST et al., Plaintiffs and Appellants, v. Gilbert F. SWEET et al., Defendants and Appellants, General Casualty Co. of America, a foreign corporation, Defendant and Respondent.
• Court: Wisconsin Supreme Court

Page 84

84 N.W.2d 84

1 Wis.2d 345

Della PAVELSKI et al., Plaintiffs and Appellants, v. Orville F. ROGINSKI, Defendant and Appellant, General Casualty Co. of America, a foreign corporation,

Defendant and Respondent,

Great American Indemnity Co. of New York, a foreign

corporation, Interpleaded Defendant and Appellant.

Jerome PRUST et al., Plaintiffs and Appellants, v. Gilbert F. SWEET et al., Defendants and Appellants, General Casualty Co. of America, a foreign corporation,

Defendant and Respondent.

Supreme Court of Wisconsin.

June 26, 1957.

Rhyner, Hosek & Zappen, Marshfield, for Della Pavelski.

John S. Crawford, Marshfield, for Gilbert F. Sweet.

Pors & Pors, Marshfield, for Great American Indemnity Co.

Schiro, Tusa & Schiro, Milwaukee, for Orville F. Roginski.

Walter J. Steininger, Milwaukee, for Jerome Prust Donald Meyer, Larry Roginski, Alvin Olszyk, their guardian ad litem and Jacqueline Roginski.

Smith, Okoneski, Puchner & Tinkham, Wausau, for respondent.

FAIRCHILD Justice.

The circuit court was of the opinion that the instant case is not distinguishable from Quin v. Hoffmann, 1954, 265 Wis. 636, 62 N.W.2d 423. The appellants urge that the two cases are distinguishable because the insured in the Quin case must have known his brother had no license permitting him to drive at night, because of his age, and the insured in the instant case asserts that he had no knowledge or reason to know that his brother Donald was not properly licensed. In the Quin case this court held that an insured who gave permission to one who had no license to drive violated sec. 85.08(39), Stats. Appellants claim that in the instant case there is at least a jury issue as to whether Orville Roginski knew that Donald was unlicensed and that if he did not know, he was not violating sec. 85.08(39). Respondent points out that even if an owner does not violate sec. 85.08(39) unless he knows that the person whom he permits to drive does not have a proper license, the person permitted so to drive nevertheless violates sec. 85.08(3). Furthermore the reasoning of the court in the Quin case was that it would be good public policy to deprive an unlicensed person of the protection of the policy of the automobile liability insurance issued to the owner. It was thought that such deprivation would act as a deterrent to unlicensed drivers. That reasoning would not be logical if the Quin decision was intended to apply only where the owner had knowledge that the other driver was unlicensed. Therefore we agree with the circuit court that the cases are not distinguishable.

We are impelled, however, to recosider the basis of the decision in the Quin case. The court adopted a narrow construction of the word, 'permission' as it appears in the omnibus coverage clause required by sec. 204.30(3), Stats. This court construed the word, 'permission' to mean permission legally granted, and also, in line with what is said above, permission to one legally authorized to drive. As has been said, the reason for so limiting the word 'permission' was the court's view that it would be good public policy to deny the unlicensed driver the protection of the owner's policy. The court recognized that in so doing it denied persons injured the right to recover from the insurance company, but concluded that protection of the driver as an additional insured was the purpose of the omnibus coverage clause, not the protection of persons who might be injured as a result of negligence in the operation of an insured vehicle.

The Quin case was decided February 2, 1954. In the 1955 session of the legislature the omnibus coverage clause was amended by Chapter 349, Laws 1955. By its terms permission is 'to be deemed permission without regard to s. 85.08(39) or to whether the riding, use or operation is authorized by law.' The legislature evidently disagreed with the court's conclusion as to the desirable public policy. The amendment became effective July 9, 1955, however, and there are cases still in litigation which involve unlicensed drivers and arose prior to the amendment. Besides the instant case an example is Behringer v. State Farm Mut. Auto Ins., 1957, 275 Wis. 586, 82 N.W.2d 915, disposed of on grounds which made reconsideration of the Quin case unnecessary.

An examination of the history of legislation with respect to provisions of automobile liability insurance policies convinces us that in the case of omnibus coverage the legislature was in fact concerned with increasing the number of injured persons who could recover under insurance policies and that the protection of the additional insured was not the sole object of the law.

In 1925 the requirement of omnibus coverage contained in sec. 204.30(3) was created by Chapter 372. The same chapter created subs. 1 of 204.30, requiring every policy to contain a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages...