Watkins v. Watkins

• Decision Date: 06 December 1932
• Citation: 245 N.W. 695,210 Wis. 606
• Parties: WATKINS v. WATKINS ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 606

245 N.W. 695

WATKINS

v.WATKINS ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1932.

Appeal from a judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.

Action by Mildred Watkins against Howard L. Watkins, Walter Krahn, and another, with a cross-complaint by the last-named defendant. From a judgment for plaintiff and the last-named defendant, the first-named defendant and another appeal, and the last-named defendant also appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Action begun October 24, 1931; judgment entered March 25, 1932. Automobile accident. Plaintiff was a sole trader under the name of National Bank Supply Company, and employed her husband Watkins as a salesman. She purchased a secondhand car for the use of Watkins, paid his bills for gas, oil, and repairs, and he used it in his business of salesman for the plaintiff. The car was licensed in defendant Watkins' name, insured in his name; the premium, however, being paid wholly or in part by the plaintiff. The plaintiff had been traveling with her husband for some time previous to the happening of the accident. On October 4, 1931, the plaintiff and defendant started from Wausau to drive to Milwaukee on plaintiff's business. At a point on highway 51, a few miles south of Wausau, where the concrete road, 18 feet in width, is straight and level, the defendant Watkins, driving south at a speed of 40 to 45 miles an hour, collided with the truck of the defendant Krahn, who was driving north at a speed of 35 to 40 miles an hour. At a point less than 100 feet south of the point of collision and near the Champine saloon, a side road came into highway 51 from the east. As Krahn approached the point of intersection of the side road with highway 51, he observed approaching from the east a car which appeared afterward to have been driven by one Snelling. The truck which Krahn was driving was loaded with about three and one-half tons of sludge. Although Krahn expected the Snelling car to stop, he slowed down his truck somewhat. The Snelling car, however, proceeded into highway 51 and into the pathway of the Krahn truck without stopping for the arterial sign. Krahn first concluded that he would overtake the Snelling car, and turned out to the left or his west side of the highway to pass the Snelling car. He then observed the Watkins car coming south on the west or its right side of the highway. He then returned to his proper place on the east side or his right side of the highway behind the Snelling car. The Snelling car was proceeding at a low rate of speed estimated at 8 or 10 miles an hour. Krahn then made up his mind that he would be unable to check his speed sufficiently to avoid a collision with the Snelling car. There was a ditch to the left or west side of the road, and for some reason he concluded to attempt to reach the ditch on the west side of the road, turned abruptly across the concrete road, and was almost instantaneously struck by the Watkins car coming from the north. The truck was overturned on the west side of the road, and the Watkins car remained turned somewhat to the southwest with its rear wheels still on the west side of the highway.

Plaintiff brings this action to recover for injuries sustained in the collision. The case was submitted to a jury upon a special verdict, and the jury found that the defendant Watkins, at the time and place in question, was negligent: (a) In that he failed to keep a sufficient lookout ahead and control of his car; (b) in that he failed to have his car equipped with sufficient brakes; and found that the collision was a natural result of the defendant Watkins' negligence. The jury found that the defendant Krahn was negligent (a) in driving to the left side of the roadway under the circumstances present, but, acquitted him of negligence as to lookout ahead and control of his truck; found that his negligence in driving to the left was a natural cause of the collision; acquitted the plaintiff of contributory negligence; assessed the plaintiff's damages at $7,500; assessed Krahn's damages to his truck, $90; damages for personal injuries at $1,000; and found that Krahn's negligence was 25 per cent. of all the negligence which produced the collision. The plaintiff and the defendant Krahn had judgment, from which the defendants all appeal.Lehner & Lehner, of Princeton, for plaintiff respondent.

Bird, Smith, Okoneski & Puchner, of Wausau for appellants respondents.

A. H. Eberlein, of Wausau, for respondent appellant.

ROSENBERRY, C. J.

One of the errors assigned is that the trial court denied the defendant Employers' Mutual Indemnity Corporation's motions for a directed verdict at the close of all the evidence. The fourth paragraph of the answer of the Employers' Mutual Indemnity Corporation is as follows: “4. Alleges that the said insurance policy contained the following express condition and stipulation, among others to-wit: ‘H. No action shall lie against the Company to recover upon any claim or for any loss defined herein unless brought after the amount of such claim or loss shall have been fixed and rendered certain either by judgment against the insured after trial of the issue, or by agreement between the insured and claimant with the written consent of the company, nor in any event unless brought within one year thereafter.’ ”

[1][2] The facts presented by this paragraph are those ordinarily set up by way of a plea in abatement. While the court was aware at the beginning of the trial that the allegations already quoted were in the answer, no question was raised with respect to the matters therein stated until after the close of all the evidence. Upon the trial, the policy was offered and received in evidence, and the issues as between Watkins and the Employers' Mutual Indemnity Corporation, hereinafter referred to as the insurer, were brought to the attention of the court, and evidence was offered and received in respect thereto. No doubt the failure of the insurer to demand a separate trial with respect to the issues raised by the plea in abatement constituted a waiver of its right in that respect. However, when upon motions at the close of the evidence it was apparent that under its policy an action could not be maintained against the insurer, the court should have granted the insurer's motion for a verdict as to it. The policy was issued on February 6, 1931. Chapter 375 of the Laws of 1931 was published on June 30, 1931. The court held the chapter applicable because the policy contained a provision that it might be canceled either by the insured or the insurer by giving five days' written notice of cancellation; that for that reason the policy was not an absolute contract for one year. How a right reserved to terminate a contract affects the obligation of the contract unless and until the right is exercised, we are unable to understand. The contract was at all times from the date of its issue down to the time of the accident either in force or not in force. If it was in force it was in force as written, and was not amended in any way by reason of the failure of the insurer to terminate its contract in accordance with the right reserved by its terms.

[3] The policy also contained a provision to the following effect: “Any specific statutory provision in force in any state or province shall supersede any condition of this policy inconsistent therewith.”

It is argued that under this clause, chapter 375 of the Laws of 1931 was incorporated in the policy. It is quite apparent that the language of the contract refers to statutory provisions then in force, and is inserted by the insurer for the purpose of avoiding conflict between its policy and the laws of any state in which the policy may be issued. The company does not consent that its contract may be thereafter modified by statute subsequently enacted. See 1 Cyc. Ins. (Couch) pars. 157 and 158, p. 308, and cases cited.

II. The insurer set up in its answer facts which, if true, tend to show that the insured, Howard L. Watkins, failed to perform the contract with respect to co-operation. The co-operation clause is as follows:

“The insured, as often as required, shall exhibit to any person designated by the Company all that remains of any property herein described, and shall submit to examinations under oath by any persons named by the Company, and subscribe the same; and as often as required, shall produce for examination all books of accounts, bills, invoices, and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by the Company or its representative, and shall permit...