Stammer v. Kitzmiller

• Decision Date: 07 December 1937
• Parties: STAMMER v. KITZMILLER et al.
• Court: Wisconsin Supreme Court

226 Wis. 348

276 N.W. 629

STAMMER

v.KITZMILLER et al.

Supreme Court of Wisconsin.

Dec. 7, 1937.

Appeal from a judgment of the Municipal Court of Outagamie County; Thomas H. Ryan, Judge.

Reversed on appeal of Employers Mutual Indemnity Corporation.

Norbert Stammer began this action October 25, 1935, to recover damages sustained through the negligence of the Blatz Brewing Company. He made the Blatz Brewing Company and the Employers Mutual Indemnity Corporation defendants, and the Ohio Casualty Insurance Company was interpleaded. The claim of plaintiff was compromised by the Blatz Brewing Company, which by cross-complaint sought recovery of the amount paid from the Employers Mutual Indemnity Corporation and the impleaded defendant Ohio Casualty Insurance Company. From a judgment against each insurance company in favor of Blatz Brewing Company, the Employers Mutual appeals.

On January 16, 1935, an employee of the Blatz Brewing Company was using one of its trucks to deliver beer to a tavern. He parked the truck alongside the curb, got out, and opened a hatchway in the sidewalk; then he removed a barrel of beer from the truck and placed it either on the sidewalk or on the street pavement. He then lifted the barrel and put it through the hatchway into the basement of the tavern. While he was engaged in having the sales slip for the beer signed inside the tavern, the plaintiff fell into the open hatchway, left unguarded by the Blatz employee. At the time Stammer was injured, the Blatz Brewing Company had in force two casualty insurance policies. One, issued by the Employers Mutual, covered the truck used in making the delivery. This policy insured against loss imposed by law for damages on account of accidents caused “by operation, maintenance or use (including transportation of goods, loading and unloading) of an automobile.” The policy of the Ohio Casualty Company protected the insured against loss or expense imposed by law for damages “if caused by employees of the Assured engaged as such in the business operations described in said Declarations (Brewery) who are required in the discharge of their duties to go off the insured premises, subject, however, to the following specific condition. This agreement shall not apply to such injuries caused by such employees as are engaged elsewhere than at the insured premises *** while such employees so engaged elsewhere than at the insured premises are driving or using any vehicle. ***”

The municipal court decided that the injury to the plaintiff Stammer was one covered by both policies, and that the cross-complaining defendant, the Blatz Brewing Company, was entitled to judgment against the defendants for $450, together with the sum of $100 attorney's fees.

The Blatz Brewing Company and the Employers Mutual appeared by the same attorneys when the action was first begun. It does not appear from the record just when other attorneys were substituted. Because of some statement made in the brief of the Ohio Casualty Company, the court was requested to return the record for perfecting it in this particular. This request was not granted because it was deemed no question was thereby raised to affect in any manner the merits of the case. The record does show that when events placed the Blatz Brewing Company and the Employers Mutual in positions so that their interests appeared adverse, each was represented by attorneys. There is an appeal by the Employers Mutual. The Ohio Casualty Company served a notice of review.Quarles, Spence & Quarles, of Milwaukee (Kenneth Grubb and Henry S. Reuss, both of Milwaukee, of counsel), for appellant.

Michael Levin, of Milwaukee, for impleaded defendant Ohio Casualty Ins. Co.

Benton, Bosser, Becker & Pernell, of Appleton, for respondent Blatz Brewing Co.

FAIRCHILD, Justice.

[1] The practice followed brings here for consideration only the appeal of the defendant Employers Mutual Indemnity Corporation. It appealed timely from the judgment below; served notice of appeal to this court on the impleaded defendant Ohio Casualty Insurance Company on the 20th day of April, 1937. This required the impleaded defendant, if it so desired to take and perfect its own appeal within 30...