Smedley v. Milwaukee Auto. Ins. Co.
| Decision Date | 07 February 1961 |
| Citation | 12 Wis.2d 460,107 N.W.2d 625 |
| Parties | Paul Pace SMEDLEY, Plaintiff-Respondent, v. MILWAUKEE AUTOMOBILE INSURANCE COMPANY, a Wisconsin corporation, and William McCrossen, doing business as McCrossen Truck Crane Service, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
D. J. Regan, Milwaukee, Leo E. Vaudreuil, Kenosha, for appellants.
Goldberg, Previant & Cooper, Milwaukee, for respondent.
The appellant raises five assignments of error. The first assignment is the error of the court in denying the plea in abatement and raises the question whether the insurance company can be made a party defendant by virtue of sec. 260.11(1), Stats., 30 W.S.A. p. 39. This section applies to an action for damages caused by the negligent operation, management, or control of a motor vehicle. In construing this section we must also consider sec. 204.30 (4), Stats., 25 W.S.A. p. 310. 1 This latter section creates direct liability to others than the insured on the part of the insurer of a bond or insurance policy covering liability by reason of the operation of a motor vehicle when the injury is caused by the negligent operation, maintenance, use or defective construction of the vehicle described therein. This condition of direct liability is only read into the type of bond or insurance policy which covers the cause of action described in this section.
The policy upon which the plea in abatement rests is not an insurance policy covering liability by reason of the operation of a motor vehicle, and no vehicle is described therein. The policy issued by the defendant Milwaukee Automobile Mutual Insurance Company to defendant McCrossen is an owners', landlords' and tenants' liability policy and insures him against liability because of bodily injury, sickness or disease caused by an accident arising out of the hazards therein defined. The hazards defined in the policy are the ownership, maintenance or use of his premises and the operations necessary or incidental thereto, and other hazards not material to the issue. By endorsement, the operations of defendant were extended to include coverage of certain employees, clerical office employees, certain types of construction, and iron or steel erection. The insurance company admits coverage because the accident happened during the defendant's operation in erecting steel beams. But this coverage does not bring the policy within the terms of sec. 204.30(4), Stats., because its liability under the policy is not predicated on the operation, maintenance or use of a motor vehicle described in the policy. The owners', landlords' and tenants' liability policy in this case is not such a policy as is contemplated by this section.
The plaintiff argues that the insurance company may be made a party defendant under sec. 260.11, Stats., because the damages were caused by the negligent operation, management or control of a motor vehicle and this crane being mounted on a truck was a motor vehicle. Sec. 260.11 2 refers to an insurer of motor vehicles and contemplates the type of insurance policy referred to in sec. 204.30(4), Stats. The complaint alleges negligence on the part of defendant McCrossen in failing to properly manage and control the crane he was operating in respect to swinging the girder up unexpectedly, in swinging the girder too close to the plaintiff, in slackening the boom line, in allowing the girder to crash on the wall, and in failing to obey signals directing the movement of the crane. These are not the usual allegations for the operation, management or control of a motor vehicle but would be sufficient if in fact the crane was a motor vehicle.
The plaintiff argues the mobile crane was a motor vehicle and the fact it was stationary at the time of the accident does not make it any less a motor vehicle, and relies on Wiedenhaupt v. Van Der Loop, 1958, 5 Wis.2d 311, 92 N.W.2d 815. That case held a person, who while loading a trailer truck injured his leg when it broke through the platform of the truck, was within the coverage of the automobile policy to which sec. 204.30(4), Stats., applied. It was stated the truck did not have to be in motion or have a person at the wheel of the vehicle at the time of the accident in order to state a cause of action for negligent operation and control of a motor vehicle. There was no question raised that the truck involved was not a motor vehicle. We held that at the time of the accident the truck was being 'used' as a motor vehicle.
The question here is whether the operation and control of the crane at the time of the accident was the operation and control of a motor vehicle within the meaning of the statute. It is undoubtedly true if the unit were being driven on a public street for the purposes of locomotion, it would be considered a motor vehicle. In the record there are several photographs and a lithograph of this unit. Arbitrarily classifying it either as a truck or a hydrocrane without reference to a particular use does not solve the problem. When the unit is in locomotion for the purpose of transporting the crane, it takes on the essential aspects of a motor vehicle for some purposes. However, after the unit arrives at its destination, the mobile aspect ceases and the crane is operated as an independent immobile unit. The test under the statutes is whether at the time of the accident the unit is being used, managed, controlled or operated as a motor vehicle in the ordinary meaning of those words. At the time of the accident the unit was stationary, the crane was stabilized, supported and rendered immobile by outriggers. The unit was not then used as a motor vehicle. Plaintiff was injured by the operation of the crane, not the operation of the truck. We do not believe such use of the unit is within the meaning of the negligent operation, management or control of a motor vehicle as used in sec. 260.11, Stats.
We do not consider the case of Kanios v. Frederick, 1960, 10 Wis.2d 358, 103 N.W.2d 114, in point. The street sweeper covered by the insurance policy was on the highway, momentarily stopped. The operator's act of motioning and calling the driver of another car to proceed was stated to be a customary incident of operation of a vehicle in connection with the use of a highway. No question was raised that the sweeper was not a motor vehicle. However, the nature of the vehicle was involved in Albert v. Regal Ware, 1959, 6 Wis.2d 519, 95 N.W.2d 240, wherein the insurance policy excluded coverage arising out of the operation of any crane unless its operation was solely for the purpose of locomotion. A material issue of fact arose as to the nature of the vehicle which precluded summary judgment. The dissenting opinion stated the outfit was a crane and its use at the time of the accident was not solely for the purpose of locomotion and coverage was excluded from the auto insurance policy. Neither of these cases control the nature of the mobile crane in this case or construe sec. 260.11, Stats.
The case of Ermis v. Federal Windows Mfg. Company, 1959, 7 Wis.2d 549, 97 N.W.2d 485, cited by the plaintiff, is not in point. The...
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