Strozewski v. American Family Mut. Ins. Co.
| Decision Date | 03 March 1970 |
| Docket Number | 82 and 83,Nos. 81,s. 81 |
| Citation | 174 N.W.2d 550,46 Wis.2d 123 |
| Parties | Gerald E. STROZEWSKI, Plaintiff-Respondent, v. AMERICAN FAMILY MUT. INS. CO., a Wis. ins. corp., Defendant-Appellant, Larry Wayne Schoenfeld, Defendant-Respondent. Dennis KAHN by gdn. ad littem, et al., Plaintiffs-Respondents, v. Larry SCHOENFELD, by gdn. ad litem, Defendant-Respondent, Gerald STROZEWSKI et al., Defendants and Third-Party Plaintiffs-Respondents, AMERICAN FAMILY MUT. INS. CO., a Wis. ins. corp., Third-Party Defendant-Appellant. Joseph G. KAHN et al., Plaintiffs-Respondents, v. MARYLAND CASUALTY CO., a foreign corp., et al., Defendants-Respondents, American Family Mut. Ins. Co., a Wis. ins. corp., Appellant. |
| Court | Wisconsin Supreme Court |
This is an appeal from an interlocutory judgment which determined insurance coverage and was entered on February 17, 1969, in the circuit court for Milwaukee county. It was adjudged that the automobile driven by the defendant, Larry Wayne Schoenfeld, was a 'temporary substitute automobile' within the definition of an automobile liability insurance policy issued by the appellant, American Family Mutual Insurance Company.
The lawsuit arose out of an automobile accident which occurred on October 18, 1963, when Larry Wayne Schoenfeld, driving a 1954 Oldsmobile owned by his mother, Rae Schoenfeld, collided with an automobile driven by Gerald E. Strozewski, whose automobile, in turn, struck the stationary automobile of Joseph G. Kahn, whose passenger at the time was Dennis Kahn.
Strozewski commenced an action for personal injuries against Larry Schoenfeld and American Family Mutual Insurance Company, Joseph Kahn and his collision insurer, Hanover Insurance Company, commenced an action for property damage against Strozewski, his insurer, Maryland Casualty Company, and Larry Schoenfeld. Both Joseph and Dennis Kahn commenced personal injury suits against Strozewski, his insurer, Maryland Casualty Company, and Larry Schoenfeld. Strozewski and his insurer impleaded American Family Mutual Insurance Company in the Kahn actions, alleging that its policy covered Larry Schoenfeld as the driver of the 1954 Oldsmobile. The actions were consolidated for determination of the insurance coverage issues raised. The parties stipulated to waive their rights to a jury trial.
It was learned at trial that Larry Schoenfeld's father, Marvin, was the title owner of a 1955 Buick, whose use was insured against liability by American Family Mutual Insurance Company. An additional premium of $44 was paid because it was estimated that Larry, then under twenty-five years of age, would use the Buick 5 percent of the time and his father 95 percent of the time. This policy was in effect upon the day of the accident, October 18, 1963.
Rae Schoenfeld, Marvin's wife and Larry's mother, was the title owner of a 1954 Oldsmobile, the car driven by Larry at the time of the accident. The Oldsmobile was purchased on June 20, 1963. While Rae Schoenfeld did not have a driver's license, the Oldsmobile had been purchased for her by her husband in the hopes that Larry, their son, would teach her to drive. The Oldsmobile was not an automobile described in any insurance policy.
On the day of the accident, Marvin Schoenfeld's insured Buick was out of repair because of starter difficulty. Mr. Schoenfeld testified that his wife's permission was needed before he could drive her Oldsmobile and that on the day of the accident he received permission from his wife to take the Oldsmobile to work. Shortly thereafter, Larry informed his father that he was committed to drive two fellow members of a car pool to school, whereupon Larry was given permission by both Mr. and Mrs. Schoenfeld to use the Oldsmobile.
Larry Schoenfeld testified that he drove the Oldsmobile more than his father, but that he did not use it on a regular basis. The father testified that he used his Buick to go to work and that his son used it very little. It was his son's testimony that he also drove his father's Buick to and from school on occasion. However, Larry's contrary testimony before a court commissioner on March 13, 1968, was read into the record at trial. Larry had testified before the commissioner that the Oldsmobile was the only car he used to drive to and from school and the only car he used for social purposes, and that for school purposes he used no car but the Oldsmobile from June 1963 to October 18, 1963, the date of the accident.
On the basis of this testimony, the trial judge concluded that the Buick automobile owned by Marvin Schoenfeld was undergoing repairs in a garage on the day of the accident, that the 1954 Oldsmobile became a 'temporary substitute automobile' as defined in the insurance policy, and that the driver, Larry Schoenfeld, was therefore covered by the policy at the time of the accident.
The trial judge made the finding of fact that the Buick automobile was normally used by Marvin Schoenfeld to go to work.
John W. Emmerling, Milwaukee, for appellant.
Charles Saggio, Milwaukee, for Gerald Strozewski.
Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for respondents Gerald Strozewski & Maryland Casualty Co.; James W. Lane, Milwaukee, of counsel.
William J. Calvano, Milwaukee, for respondent Larry Schoenfeld; Anthony J. Brondino, Milwaukee, of counsel.
The briefs of the parties make it apparent that the only question on this appeal is whether, in fact, the 1954 Oldsmobile driven by Larry was a 'temporary substitute automobile.' 'Temporary substitute automobile,' as defined in the policy of insurance:
'* * * means an automobile or trailer while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.'
It is undisputed that the Buick had been withdrawn from normal use because it was in the garage for repair. The only question thus presented is whether the Oldsmobile was a substitute for...
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