Upton v. Tatro

• Decision Date: 03 June 1975
• Docket Number: No. 368,368
• Citation: 68 Wis.2d 562,229 N.W.2d 691
• Parties: Judith UPTON, by her guardian ad litem Leonard F. Schmitt, and Myron Upton, Plaintiffs-Respondents, v. Patrick TATRO, Defendant, Rural Mutual Insurance Co., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 691

229 N.W.2d 691

68 Wis.2d 562

Judith UPTON, by her guardian ad litem Leonard F. Schmitt and Myron Upton, Plaintiffs-Respondents, v. Patrick TATRO, Defendant Rural Mutual Insurance Co., Defendant-Appellant.

No. 368.

Supreme Court of Wisconsin.

June 3, 1975.

Terwilliger, Wakeen, Piehler, Conway & Rouse, S.C., Wausau, for defendant-appellant; Douglas J. Klingberg and Thomas N. Akey, Wausau, of counsel.

Schmitt, Nolan & Hansen, Merrill, for plaintiffs-respondents.

DAY, Justice.

The principal question on this appeal is the same as that raised in the case of Nordahl v. Peterson (1975), Wis., 229 N.W.2d 682 (decided this date): Is consent by the titleholder and named insured to operate a motor vehicle implied where such consent is given by one who, for all practical purposes, is the owner of the vehicle and has such permission from the named insured? The question involves the interpretation of the Omnibus Coverage Clause, sec. 204.30(3), Stats. ¹ We hold that under the facts in this case such consent must be implied as a matter of law.

The second question is whether or not there is credible evidence to support the jury finding that the insured's son, who is also the insured's permittee, gave permission to the driver of the car at the time of the accident to operate the vehicle in question. We find that there is such credible evidence to support the jury's verdict.

In February, 1969, Mr. William Ahlers purchased a 1963 Corvair automobile in Wausau, had the legal title put in his name, and took out insurance with himself named as the insured. The money to purchase the car however, was supplied by his son Harold for whose exclusive use the car was obtained. After the purchase, Mr. William Ahlers returned to his home in the town of Deerbrook, near Antigo, and Harold kept the Corvair with him in Wausau where he was living and working. The senior Mr. Ahlers testified that 'for all practical purposes' the car belonged to Harold. At the time of the purchase, William Ahlers instructed his son to drive safely and told him he was not to allow anyone else to drive the car without Mr. William Ahler's consent. These instructions were repeated every time Harold came home for a weekend. Harold also testified that such instructions were given and had been given on the very weekend that the accident which gives rise to this action occurred. William Ahlers testified that he was unaware of any one, other than his son Harold, ever driving the Corvair and Harold testified that he once allowed a friend to drive the car to the store when he and the friend were living in Wausau, but said his father was not aware of this until after the accident involved in this case.

On August 10, 1969, Harold Ahlers drove the defendant Patrick Tatro and one Peter Larson, both high school friends, out to another friend's house (one Jerry Walters), who lived outside of Antigo in Langlade county. Harold was driving the Corvair. There they met Jerry Walters and another friend, Mr. Brandt. There were then five young men at the Walters' home and there were at least two cars at the house, including Harold's. The young men fixed themselves a meal and drank beer. At about 2:00 o'clock in the afternoon, Harold called a girl whom he had been dating, Patricia Elam (now Boodry), to ask her to join them. She was contacted at the home of her cousin, Judy Upton. She stated that Judy did not want to come, but that she would try to talk her into it. Thirty to forty-five minutes later Harold called back but was advised that the situation was the same as far as the girls were concerned and, according to Patricia Boodry, Harold said he would call back later. Harold did not call back, but Jerry Walters called and this time Patricia said they would come out to his house; Jerry advised her that he would find someone to come and get them. Harold testified he thought he remembered talking with Patricia on the phone but does not believe he made the arrangements for her to come out to the Walter's residence.

Patrick Tatro took Harold Ahlers' car into town to pick up the girls. The girls went with Mr. Tatro and it was on the return trip that the accident occurred in which Judy Upton was injured and which gives rise to this lawsuit.

The first question to be answered is, did Mr. Tatro have Harold Ahlers' permission to go into Antigo to pick up Harold's friend?

An affidavit of Mr. Tatro's taken by the counsel for plaintiffs-respondents was admitted into evidence and states that:

'After Patricia agreed to come out, Harold, I and some of the other fellows out there discussed who would go in to get the girls. Harold had been drinking that afternoon and did not want to drive into town. We finally decided that I would go, and that I would use Harold's car. We just discussed the matter among ourselves and reached the concensus that I would go with the Corvair. Harold knew I was going to use his car, but he did not give me express permission to do so, nor did he expressly forbid me from using it.'

At the time of the trial, Mr. Tatro was out of the state as a member of the air force. Portions of a deposition taken of him on March 15, 1972, were read into the record at trial. The deposition contradicted parts of the affidavit; in the deposition he stated he was not sure if Harold was present when the discussion was held as to who would go into town to pick up the girls. He said that Harold may have been in another room watching television. He stated there was a decision 'more or less' that he would be the one to go and get the girls, but it was a decision resulting from the fact that everyone else refused to go and he was the only one left to make the trip. He testified in the deposition that Harold had been drinking and did not want to drive into town. On this issue, Harold admits to having had five or six beers. In the deposition, Mr. Tatro denied there was a decision as to which vehicle he would take to get the girls; he said that was left 'more or less up in the air.' At the deposition he said he took Harold's car because it was the most convenient; it was nearest the back door. He stated that Harold neither expressly permitted nor expressly forbade him to take his car. When asked whether Harold knew he was going to pick up the girls, Mr. Tatro replied, 'He probably did, but the way he became knowledgeable of it was probably when I drove out the driveway or something like that.' At the deposition Tatro was directly confronted with his affidavit made only a little over a week earlier and said:

'Well, as it was boiled down, he would have known, had he looked out the window or possibly saw me go outside. This statement, it's hard to tell, I really don't know. I can't peek into his mind, but I believe he probably knew I was going, but I can't be certain. . . . The location of the car was in pretty much plain view of the room we were in. It was right outside of the window, and, yes, I belive he probably knew I was using it, his car.'

He also testified at the deposition he believed he had driven the Corvair once before, returning from a dance hall or tavern with Harold when Harold had had too much to drink.

Harold admitted it was probably his idea to get Patricia out to the Walters' house and that he took part in some talks about who would get the girls, as he wanted Patricia to be there. Harold testified that he was asked if he wanted to go into town to get the girls but that he declined and does not remember anyone saying they were going. He testified he doubted it was decided that Tatro would go and supposed Tatro did go because no one else would. He testified that he did not give Tatro his permission to take the Corvair and would not have done so if asked because he knew Tatro did not have a driver's license but only a temporary permit. A police officer testified that Mr. Tatro did not have a driver's license at the time of the accident. Harold did testify that he did leave the keys in the ignition of his car. He said he did not see Tatro leave with his automobile.

Myron Upton (Judy Upton's father) testified he overheard a conversation between Harold, Mr. Tatro and two others at the hospital the evening of the accident. Mr. Tatro said to Harold, 'Let's go outside. We got to get our stories straight.' The two then went outside for about five to seven minutes. At the trial, Harold testified he did not recall any such conversation.

None of the other boys at the Walters' home had ever dated either of the two girls. Patricia testified that when Mr. Tatro arrived to pick them up he told them that Harold told him to come and pick them up. The objection of Rural Mutual to this testimony will be discussed later. The trial on the issue of insurance was had before a jury on May 25, 1973, and the judgment for the plaintiffs-respondents Judith Upton, by her guardian ad litem Leonard F. Schmitt, and Myron Upton, finding permissive use of the automobile and coverage under the policy was entered July 11, 1973; Rural Mutual appeals from that judgment.

As to the question of whether Mr. Tatro had Harold's permission to drive the automobile, Rural Mutual did move for a directed verdict, partially on the basis of the alleged insufficiency of the evidence to prove permission from Harold to Mr. Tatro; however, their motion, at the time of motions after verdict, was for judgment on the verdict dismissing the complaint against it since the jury had answered 'No' to the question of whether or not Mr. Tatro had the permission of the father, William Ahlers, to drive the automobile. In its memorandum decision the trial court ruled that the policy covered use by Mr. Tatro at the time in question as a matter of law. It is from this judgment that the insurance company appeals.

Rural Mutual now tries to raise for the first time after verdict the issue of the jury's finding on the special verdict that Mr. Tatro had Harold's permission to use the car. The plaintiffs-respondents contend...