Pouwels v. Cheese Makers Mut. Cas. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: MARTIN
• Citation: Pouwels v. Cheese Makers Mut. Cas. Co., 255 Wis. 101, 37 N.W.2d 869 (Wis. 1949)
• Decision Date: 07 June 1949
• Parties: POUWELS et al. v. CHEESE MAKERS MUT. CASUALTY CO. et al.

255 Wis. 101

37 N.W.2d 869

POUWELS et al.

v.CHEESE MAKERS MUT. CASUALTY CO. et al.

Supreme Court of Wisconsin.

June 7, 1949.

Appeal from a judgment of the Circuit Court for Brown County; Edward M. Duquaine, Judge.

Action by Vivian Pouwels and another against Cheese Makers Mutual Casualty Company for reformation of a casualty insurance contract, wherein Al Ginsberg was interpleaded as a defendant. From a judgment in favor of plaintiffs and interpleaded defendant, defendant appeals.-[By Editorial Staff.]

Affirmed.This is an appeal from a judgment, entered January 3, 1949, decreeing reformation of a casualty insurance contract in favor of the plaintiff and interpleaded defendant, and against the defendant, Cheese Makers Mutual Casualty Company, and for the sum of $2,173.27 damages and costs.

The policy in question was dated February 22, 1942. The accident complained of occurred on March 14, 1942. Action against Ginsberg and Cheese Makers Mutual Insurance Company was commenced on July 10, 1942. This action was dismissed against the insurance company and judgment rendered against Ginsberg on June 14, 1943. On appeal to this court, the judgment was sustained on March 14, 1944. Pouwels v. Ginsberg, 245 Wis. 45, 13 N.W.2d 448. That action was defended for both defendants by counsel for the casualty company.

An action at law was then commenced against Cheese Makers Mutual Casualty Company on July 19, 1944. An amended complaint was served on January 22, 1945. The action was tried on July 2, 1946, and the complaint was dismissed with leave to serve an amended complaint, in equity, for reformation of defendant's policy. Defendant's attorney represented the casualty company only, and Ginsberg was impleaded and was represented by his attorney. This action was tried August 2, 1947, and judgment decreeing reformation was entered January 3, 1949. Other material facts will be stated in the opinion.

Kaftan, Rahr & Kaftan, Green Bay, Lehner & Lehner, Adolph P. Lehner, and Howard N. Lehner, Oconto Falls, for appellant.

Cohen, Parins & Cherney and Meyer M. Cohen, Berk & Jarstad, and Bernard Berk, Green Bay, for plaintiffs and respondents.

Everson, Ryan, Whitney & O'Melia and E. L. Everson, Green Bay, for interpleaded defendant and respondent.

MARTIN, Justice.

The policy issued by the defendant, Cheese Makers Mutual Casualty Co., named ‘Al Ginsberg &/or Green Bay Auto Dist., Inc.,’ as the named assured, and listed the business of the assured as ‘auto distributor.’ At the time the policy was issued, and at the time of the accident, Ginsberg was engaged in the automobile business, the business (described by Ginsberg as ‘automobiles, garage and used cars') being conducted by a corporation known as Green Bay Auto Distributors, Inc. Ginsberg's Buick was used by him in the above business and for pleasure. At the time of the accident, the Buick was not being driven on garage business. See Pouwels v. Ginsberg, 1944, 245 Wis. 45, 13 N.W.2d 448.

Ginsberg ordered from the defendant, through one Ferslev, an insurance solicitor, insurance coverage that would cover his personally owned Buick as well as provide garage liability insurance. He received pursuant to his order the policy in question.

First of all, we will consider the question as to whether Ferslev was the agent of the Cheese Makers Mutual Casualty Company.

Sec. 209.05, Stats., provides:

‘Who are agents. Every person or member of a firm or corporation who solicits insurance on behalf of any insurance company or person desiring insurance of any kind, or transmits an application for a policy of insurance, other than for himself, to or from any such company, or who makes any contract for insurance, or collects any premium for insurance, or in any manner aids or assists in doing either, or in transacting any business of like nature for any insurance company, or advertises to do any such thing, shall be held to be an agent of such company to all intents and purposes, unless it can be shown that he receives no compensation for such services. This section shall not apply to agents of town mutual fire insurance companies.’

Mr. Ferslev had his own insurance business since 1931. He brokered his casualty and general insurance through the J. P. Mayhugh Agency, but had a direct contract with a company for life insurance. He advertised and held himself out to the public as an insurance agent. He received the oral application for insurance from Mr. Ginsberg and transmitted it to J. P. Mayhugh, a general agent for the Cheese Makers Casualty Company. The policy of insurance was delivered to Al Ginsberg by Ferslev. Mr. Ferslev collected the premium for the policy from Mr. Ginsberg, retained a portion of the premium as his fee, and transmitted the balance of the premium to the defendant-appellant through its general agent, J. P. Mayhugh.

Where an independent insurance salesman does business with an authorized insurance agency, accepts a portion of the insurance premium, and pays a portion thereof to the agency, the independent salesman is an agent under sec. 209.05, Stats.

The evidence is clear that Ferslev was the agent of Cheese Makers Mutual Casualty Company in its transaction with Al Ginsberg. See McKinnon v. Massachusetts Bonding & Ins. Co. 1933, 213 Wis. 145, 148, 149, 250 N.W. 503.

The next question is whether there is sufficient evidence to sustain the finding of the court that the policy of insurance did not conform to the intent of the parties and should be reformed.

The testimony of Ferslev and Ginsberg clearly shows that it was the intention of Ginsberg to obtain and the company agent to furnish a policy of insurance that would in effect provide coverage on Ginsberg's Buick which would be as broad as that of the ordinary policy issued on an individual car, and also provide the usual coverage afforded by a garage liability policy on the...