Rusch v. Mielke
| Decision Date | 09 April 1940 |
| Citation | 234 Wis. 380,291 N.W. 300 |
| Parties | RUSCH v. MIELKE et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the County Court of Shawano County, Circuit Court Branch; C. B. Dillett, Judge.
Affirmed.
Action brought by Ellen Rusch against Mary Mielke and London & Lancashire Indemnity Company to recover damages sustained by reason of the negligent operation of a motor truck belonging to Ben Pludeman to whom the defendant had issued an automobile liability indemnity policy in relation to the truck. The operator of another automobile and the carrier of automobile liability insurance thereon were joined also as defendants. The London & Lancashire Indemnity Company moved for summary judgment dismissing the action against it, and upon the denial of its motion appealed from an order to that effect.Wallrich & Aschenbrener, of Shawano (Schubring, Ryan, Petersen & Sutherland, of Madison, of counsel), for appellant.
Benton, Bosser, Becker & Parnell, of Appleton, for respondents Bernard Pleshek and General Casualty Co.
Winter & Koehler, of Shawano, for respondent Ellen Rusch.
The following undisputed facts are established by affidavits upon which the appellant, London & Lancashire Indemnity Company, based its motion for summary judgment: It had issued an automobile liability indemnity policy to Ben Pludeman on a truck owned by him and which was being operated with his consent by the defendant Mary Mielke at the time of the accident which resulted in injury to plaintiff. Mary Mielke was returning to her home with the truck on a trip made for the sole purpose of taking her husband to his place of employment. In Item I of the declarations embodied in the policy issued to Pludeman, he stated that his occupation was “furniture hauling”, and that the purpose for which the truck was to be used was “commercial”. That term is defined in the policy as “the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named Insured's business occupation as expressed in Item I”. Paragraph V of the “insuring agreements” in the policy provided: “This policy applies only to accidents which occur during the policy period, while the automobile *** is owned, maintained and used for the purposes stated as applicable thereto in the declarations.” Pludeman owned and used the truck as a contract motor carrier; and as such he filed the policy with the Public Service Commission in compliance with sec. 194.41, Stats.
Appellant contends that plaintiff's claim for damages caused by Mary Mielke's negligent operation of the truck is not within the limited coverage afforded by the policy because her use of the truck for the sole purpose of taking her husband to the place at which he worked for another than the insured, and which was not the latter's place of business, was not a use for the “commercial” purpose specified in the declarations embodied in the policy. In so far as the provisions in the policy are concerned that contention would have to be sustained for the reasons stated in Drewek v. Milwaukee Automobile Ins. Co., 207 Wis. 445, 449, 240 N.W. 881. See also Bohnsack v. Huson-Ziegler Co., Inc., 212 Wis. 65, 248 N.W. 764;Hardware Mutual Cas. Co. v. Milwaukee A. Ins. Co., 229 Wis. 215, 282 N.W. 27. However, the Drewek case was decided prior to the enactment of sec. 194.41(1), (4), Stats.1933-1937, under and by virtue of which respondents contend that the coverage afforded by the policy is enlarged so as to include such claims for damage on account of injury as plaintiff sustained by reason of Mary Mielke's negligent operation of the truck. Sec. 194.41(1) required Pludeman, as a contract motor carrier, to have on file with the Public Service Commission and in effect an indemnity bond, insurance policy or other written contract in such form as the commission approved, under which “such indemnitor shall assume the liability prescribed by this section with respect to such motor vehicle”; and which ...
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...22 Travelers Mutual Casualty Co. of Des Moines, Iowa, v. Thornsbury, 1936, 276 Ky. 762, 125 S.W.2d 229; Rusch v. Mielke, 1940, 234 Wis. 380, 291 N.W. 300. 23 Angel v. Bullington, 1947, 330 U.S. 183, 186, 187, 67 S.Ct. 657, 91 L.Ed. 832. See also, King v. Order of United Commercial Travelers......
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