Tolsma v. Miller

• Decision Date: 13 April 1943
• Citation: 243 Wis. 19,9 N.W.2d 111
• Parties: TOLSMA et al. v. MILLER et al.
• Court: Wisconsin Supreme Court

243 Wis. 19

9 N.W.2d 111

TOLSMA et al.

v.MILLER et al.

Supreme Court of Wisconsin.

April 13, 1943.

Appeal from a judgment of the County Court for Dodge County; W. C. O'Connell, Judge.

Reversed.

This action was commenced on January 28, 1942, by plaintiffs, John Tolsma and Merlin Tolsma, an infant, by Augusta Tolsma, his guardian ad litem, against Paul Miller and Chrysler Motor Parts Corporation, to recover damages sustained by Merlin Tolsma for injuries sustained when Merlin Tolsma was hit by an automobile driven by the defendant, Paul Miller, an employee of the defendant, Chrysler Motor Parts Corporation.

The rights of the plaintiffs were disposed of by stipulation and payment of the damages by the defendants, Miller and Chrysler Motor Parts Corporation.

Upon motion of the defendants, Miller and Chrysler Motor Parts Corporation, the Glens Falls Indemnity Company was interpleaded. The plaintiffs then amended the summons and complaint to include Glens Falls Indemnity Company as an interpleaded defendant but plaintiffs sought no recovery against the interpleaded defendant. Whereupon the defendants, Paul Miller and Chrysler Motor Parts Corporation, cross-complained against the Glens Falls Indemnity Company, claiming that the policy issued by the Indemnity Company to Joe Howard, the owner of the car which Miller was driving at the time of the accident, protected Miller. The Glens Falls Indemnity Company answered that under the circumstances Miller was excluded from the coverage of the policy and denied liability. The issue thus joined was tried to the court. The court found in favor of the Glens Falls Indemnity Company and from the judgment entered accordingly on the 4th day of August, 1942, Paul Miller and Chrysler Motor Parts Corporation appeal.

The facts will be stated in the opinion.Wilkie, Toebaas, Hart, Kraege & Jackman, of Madison, for appellants.

Dougherty, Arnold & Kivett, of Milwaukee, for interpleaded defendant and respondent.

ROSENBERRY, Chief Justice.

The questions involved are two:

Question 1. Was Paul Miller at the time in question an agent or employee of any person or organization engaged in operating an automobile repair shop, public garage, sales agency, service station or public parking place within the meaning of sec. 204.30(3), Stats.1941?

Question 2. Did the failure of the defendant, Paul Miller, to give a statement to the insurer without first consulting his attorney, where the insurer had previously denied liability to the driver, an action having already been brought by him and his employer against the insurer, constitute a refusal to co-operate?

The material facts stated as briefly as may be are as follows: Paul Miller was an employee of the Chrysler Motor Parts Corporation, a subsidiary of the Chrysler Motor Corporation. Joe Howard purchased from C. C. Dodge, the owner and operator of the Dodge Garage, a Chrysler automobile, which he insured with the Glens Falls Indemnity Company against loss by reason of liability. The policy was in the usual form and contained the following exclusion clause:

“The provisions of this paragraph do not apply * * *

“(c) to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof * * (Immaterial parts omitted).”

Prior to July 17, 1941, Joe Howard made complaint concerning the condition of his automobile to the Chrysler Motor Corporation. Paul Miller was an employee of the Chrysler Motor Parts Corporation. He was not a repairman or automobile mechanic, had no place of business or office of any kind. The Chrysler Motor Parts Corporation neither makes nor sells automobiles. It does not operate a public automobile garage, a public parking place or any establishment where automobiles are repaired. It operates no service station where gasoline is sold or any work or service is done on automobiles or automobiles are parked. It operates no automobile sales agency or place where automobiles are sold. It sells replacement parts to Chrysler, Dodge and DeSoto dealers at wholesale.

After Howard made his complaint, the Chicago office instructed Miller to go to Waupun and see both the owner and the subdealer in an effort to adjust the complaint. Miller saw...