Stone v. Inter-State Exch.

• Decision Date: 04 February 1930
• Citation: 229 N.W. 26,200 Wis. 585
• Parties: STONE v. INTER-STATE EXCHANGE.
• Court: Wisconsin Supreme Court

200 Wis. 585

229 N.W. 26

STONE

v.INTER-STATE EXCHANGE.

Supreme Court of Wisconsin.

Feb. 4, 1930.

Appeal from an order of the Circuit Court for Douglas County; W. R. Foley, Circuit Judge.

Action by M. O. Stone against the Inter-State Exchange, an insurance corporation. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.--[By Editorial Staff.]

Action commenced January 23, 1929. Defendant's demurrer to the complaint was overruled by an order entered June 19, 1929, and defendant appealed from that order.Schoetz, Williams & Gandrey, of Milwaukee (Coe Bros., of Barron, of counsel), for appellant.

Jones & Omernik, of Spooner (Hile & Dahl, of Superior, of counsel), for respondent.

FRITZ, J.

In so far as material on this appeal, the following facts are alleged in the complaint:

The defendant, a Wisconsin corporation organized and existing under section 201.39, Wis. Stats., duly issued to H. C. Furchtenicht, on June 28, 1926, a policy of insurance “against money loss by reason of his legal liability to others for bodily injuries accidentally sustained, including death at any time, resulting therefrom on account of any accident due to the use by himself, employee or member of his family, of any automobile described in this policy, subject to the conditions of this policy.”

On July 7, 1926, while that policy was in force, the plaintiff sustained bodily injuries by reason of the negligence of Furchtenicht in operating the automobile described in that policy. On October 5, 1926, plaintiff began an action against Furchtenicht in the circuit court for Washburn county to recover damages for those personal injuries, and on February 17, 1927, judgment was entered in that action in favor of plaintiff against Furchtenicht for $3,225.95 and costs. On May 11, 1927, an execution was issued on that judgment, and thereafter duly returned as unsatisfied by the sheriff. On and after December 20, 1926, Furchtenicht was a bankrupt, and so adjudicated by the federal court. Plaintiff gave the Inter-State Exchange due and timely notice of his claim against Furchtenicht, and of all proceedings against him, including the entry of said judgment, and demanded payment thereof by the Inter-State Exchange under said policy of insurance. No payment has been made, and plaintiff contends that he is entitled to recover the amount of his damages and judgment from the defendant herein by reason of its policy of insurance and the statutes in such cases made and provided.

The defendant contends that the plaintiff cannot maintain this action against the defendant directly to recover the amount of the judgment entered against Furchtenicht. The Inter-State Exchange was a party to the action of Ducommun v. Inter-State Exchange, 193 Wis. 179, 212 N. W. 289, 214 N. W. 616, 617. The policy of insurance involved in that case was issued by the Inter-State Exchange in substantially the same form as its policy in the case at bar. After extended consideration and reconsideration on a motion for rehearing, this court then said:

“The contract here in question is on its face expressly denominated a ‘policy.’ It is, in fact, a ‘policy of insurance,’ within the meaning of that term as used in section 85.25 of the Statutes. The fact that the policy is limited to indemnity only does not take it out of the provisions of section 85.25. * * * As stated in the original opinion, section 85.25 of the Statutes imposed the same liability upon the appellant Exchange as if the Exchange had incorporated the provisions of this section into the body of its policy, thereby clearly giving to the plaintiff a right of action against the Exchange.”

The following excerpts from that original opinion dispose of all propositions now urged by defendant regarding the character of the relationship and the nature of the defendant's obligations which, by virtue of such a policy and the statutes applicable thereto and to the defendant, exist, on the one hand, between the defendant and persons to whom it issues such a policy or who are entitled to indemnity thereunder, and, on the other hand, between the defendant and persons who may become entitled to recover damages from the persons entitled to such indemnity for injuries sustained, under conditions or circumstances which are within the coverage of the policy:

“The fact that the policy contains a recital that the Exchange is created pursuant to section 1915m (now section 201.39) of the Statutes does not change the nature of the obligation assumed when the policy was issued. * * * Even if the appellant had seen fit to exercise its right to exchange policies, the exercise of such power would not relieve appellant from the direct liability to the insured which it assumed when it issued its policy of insurance to plaintiff.” Page 181 of 193 Wis., 212 N. W. 290.

“This section [85.25, Stats.] imposed the same liability on the appellant Exchange as if the Exchange had incorporated the provisions of section 85.25 * * * into the body of its policy. This section clearly gives the plaintiff a right of action against the appellant Exchange, because plaintiff is alleged to be a...