White v. Kane

Decision Date06 February 1923
Citation192 N.W. 57,179 Wis. 478
PartiesWHITE v. KANE ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, La Crosse County; Oscar M. Fritz, Judge.

Action by Thomas C. White against Robert H. Kane, doing business as the La Crosse Taxicab Company, and another. Judgment for plaintiff, and defendants appeal. Affirmed.

The plaintiff was injured from a collision with a taxicab owned and being operated for the defendant Robert H. Kane, doing business as the La Crosse Taxi Company. The defendant Liability Company, a Wisconsin corporation, was made defendant as the insurer of the defendant Kane.

The plaintiff, just before 6 a. m. of May 16, 1921, was proceeding south on a straight, level public road or causeway as it crossed about 2,000 feet of low land between the north and south portions of the city of La Crosse. There was a concrete sidewalk on the westerly, and a pedestrian and bicycle path on the easterly, side. Just east of the sidewalk ran the double tracks of the street car company 10 feet from center to center. East from the tracks for about 35 feet the roadway was limestone macadam, and used for vehicular traffic. At that time a ditch had been excavated about 3 feet wide for the laying of a gas main, and extended several hundred feet south from the north end of the causeway and at the easterly edge of the roadway. Sand from such excavation had been thrown in a heap parallel with said ditch and about a foot to the west of its edge. The plaintiff was proceeding along such 1-foot strip on his way to the car barns, from which he was to start as motorman. He became aware of the approach from the north of a motor bus upon which he had, on previous occasions, ridden across the causeway. Such bus was proceeding at about 6 miles per hour and was close to the easterly rails of the car track. The plaintiff then stepped on and over the sand pile and proceeded toward the motor bus slightly to the northwest. When he had crossed about 12 or 15 feet into the causeway there was a collision between him and the right-hand fender of defendant's taxicab coming from the south. As a result his body was carried and thrown some distance to the north and to the rear of the motor bus, and the taxicab proceeded with set brakes some distance beyond to the north before coming to a stop.

The defendant liability company had, prior to the accident, executed to the defendant its policy by which, among other things, it was agreed:

“That it will pay to the assured the amount of any final judgment for damages, including costs, disbursements and interest, or any part thereof, not exceeding the limit herein stated, rendered against the assured after trial of the issue, by reason of the liability imposed by law upon the assured, due to the ownership, maintenance or use of any automobile described in the schedule of statements, provided the judgment was founded upon claims made against the assured on account of * * * bodily injuries * * * accidentally suffered or alleged to have been suffered by any person or persons as a result of the accident occurring while this policy is in force.”

And a further provision that, in addition to the above, the defendant company agreed “to investigate the accident covered by this policy and to defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim whether groundless or not, for damages suffered or alleged to have been suffered,” etc. There was added as a special condition of said contract the following:

“It is further understood and agreed that the coverage under this form shall be extended and made to cover in accordance with Ordinance No. 647 of the city of La Crosse, Wisconsin, and with the statutes of the state of Wisconsin.”

Such Ordinance No. 647 so referred to being entitled, “An ordinance regulating the business of conveying persons for hire,” and requiring a license and bond therefor, provided, among other things, that a person such as defendant Kane, engaged in the carrying of passengers in a motor-driven vehicle, was required, in lieu of giving a bond to the city of La Crosse conditioned for the payment of loss and damage, to deposit a liability and personal property damage insurance policy, conditioned, among other things, as follows, to wit:

“That the insurer will pay to any person injured any sum to which such person is entitled resulting from the operation of said business, not to exceed $5,000.”

The statute in force at this time regulating the operation of such vehicles provided by section 1797--63 that the indemnity bond to be furnished by persons engaged as was the defendant “shall provide that the company issuing the same shall be directly liable for and shall pay all damages, not exceeding two thousand five hundred dollars to any one person, or five thousand dollars for any one accident that may be recovered against the operator of the vehicle described therein by reason of the negligent use and operation of such vehicle.”

The defendant liability company demurred to the complaint upon the grounds: (a) That several causes of action have been improperly united; (b) that there is a misjoinder of parties defendant; (c) that it appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action against the defendant. Upon motion such demurrer was overruled, and the defendant had leave to answer. It then answered, admitting its authority to issue and the execution of the policy contract above described and the filing of the same with the city clerk of the city of La Crosse, and further alleged that it was not a necessary party defendant, and that the issues growing out of the matters set forth in the complaint did not involve such defendant by virtue of said policy contract, and prayed that the issues between the plaintiff and defendant Kane be first tried and determined, and...

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11 cases
  • Stephenson v. N. O. Ry. & L. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • March 14, 1927
    ... ... courts of those states, see: ... Huddy ... on Automobiles, 8th Ed., 182 ... White ... vs. Kane, 179 Wis. 478, 192 N.W. 57 ... Fenton ... vs. Poston, 114 Wash. 217, 195 P. 31 ... City ... of Providence ... ...
  • Harrison v. Southern Transit Co.
    • United States
    • North Carolina Supreme Court
    • November 17, 1926
    ... ... for carrying passengers on the public highways between ... Raleigh and Greensboro, one of which vehicles, a White truck, ... was known as "Pathfinder." The city of Greensboro, ... a municipal corporation, enacted certain ordinances, ... forbidding the ... motorbus." Milliron v. Dittman, 180 Cal. 443, ... 181 P. 779 ... [135 S.E. 462] ...          White ... v. Kane, 179 Wis. 478, 192 N.W. 57, was an action against the ... operator of a taxicab and a liability company which had ... contracted in its policy to ... ...
  • O'Neal v. Pocahontas Transp. Co.
    • United States
    • West Virginia Supreme Court
    • September 8, 1925
    ... ... company. Among these decisions are Milliron v ... Dittman, 180 Cal. 443, 181 P. 779; White v ... Kane, 179 Wis. 478, 192 N.W. 57; Boyle v ... Manufacturers' Liability Ins. Co., 96 N. J. Law, ... 380, 115 A. 383; Devoto v. United Auto ... ...
  • O'neal v. Pocahontas Transp. Co
    • United States
    • West Virginia Supreme Court
    • September 8, 1925
    ...for damages against the transportation company. Among these decisions are Milliron v. Dittman, 180 Cal. 443, 181 P. 779; White v. Kane, 179 Wis. 478, 192 N. W. 57; Boyle v. Manufacturers' Liability Ins. Co., 96 N. J. Law, 380, 115 A. 3S3; Devoto v. United Auto Transportation Co., 128 Wash. ......
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