Suennen v. Evrard
| Decision Date | 12 April 1949 |
| Citation | 36 N.W.2d 685,254 Wis. 565 |
| Parties | SUENNEN v. EVRARD. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Oconto County; Arold F. Murphy, Judge.
Affirmed.
Action commenced August 16, 1947, by Raymond Suennen, administrator of the estate of Louis Suennen, plaintiff, against Cornelius Evrard and Hartford Accident and Indemnity Company, an insurance corporation, defendants, to recover damages for the instantaneous death of Louis Suennen as the result of a collision between his automobile and one driven by the defendant Evrard. From a judgment dated August 16, 1948, in favor of the plaintiff, the insurance company appeals.
In December, 1946, the defendant Evrard, a resident of the city of Oconto Falls, Wisconsin, made application to the city council of that city for a license to operate a taxicab. He was informed that it would be necessary for him to file an insurance policy covering the operations of his automobile as a taxicab with more coverage than was provided by the automobile liability policy then in force on his automobile. He then made application to one Gills, the insurance agent through whom he had purchased insurance, for a policy with the limits required by the city. That company refused to increase the policy for the reason that it did not insure taxicabs. The agent then made two additional applications for this insurance to other companies, and each of the companies refused to write the insurance. After the third rejection the agent referred the application to the Wisconsin Assignment Risk Plan which assigned it to the defendant Hartford Accident and Indemnity Company. This company issued its policy dated March 6, 1947, which covered the period from February 27, 1947, to February 27, 1948. The premium was paid in full and the policy was filed with the city clerk of Oconto Falls. Evrard obtained his taxicab license and operated his automobile as a taxicab in and around Oconto Falls. In May, 1947, Evrard went to West Allis, Wisconsin, where he obtained employment. On May 15, 1947, Evrard wrote the following letter to Gillis at Oconto Falls:
‘Will you fill out that claim slip & send it to me and I will sign it and send it back.
‘I also want may cab insurance cancelled and I want some like I had before on my other car and you can give the balance of the money to my mother.’
Gillis picked up the Hartford policy at the office of the city clerk and on May 21, 1947, forwarded it to the Hartford Accident and Indemnity Company at Hartford, Connecticut, with the following letter:
‘Enclosed Policy No. 78225, is to be canceled out.
‘Mr. Evrard has discontinued the Taxi Business, and has no further use, for this Policy.
‘Yours very truly,
‘Albert Gillis
‘Agent
‘P. S. Please mail the refund check to me at Oconto Falls, Wis.’
On June 21, 1947, Evrard was driving his car from West Allis, where he was employed, to Oconto Falls. He was accompanied by one Peterson who paid for half of the gasoline and oil used on the trip. Near Oconto Falls they were involved in an accident in which Louis Suennen was instantly killed and one Raymond Suennen was injured. On June 23, 1947, Gillis reported this accident to an adjuster for the Hartford company who resided at Appleton, Wisconsin. On June 24, 1947, Gillis sent the following telegram to the Hartford Accident and Indemnity Company: ‘Herewith cancelling cancellation letter of May 21, 1947 Policy No. 78225’
The company replied to Mr. Gillis that it had received the telegram but is file did not reveal a letter of cancellation dated May 21, 1947. Upon receipt of the letter of May 21 enclosing the insurance policy the Hartford Accident and Indemnity Company had forwarded the policy and letter to its Chicago office for processing. The...
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