Witzko v. Koenig

• Decision Date: 27 April 1937
• Citation: 224 Wis. 674,272 N.W. 864
• Parties: WITZKO et al. v. KOENIG et al.
• Court: Wisconsin Supreme Court

224 Wis. 674

272 N.W. 864

WITZKO et al.

v.KOENIG et al.

Supreme Court of Wisconsin.

April 27, 1937.

Appeal from an order of the Circuit Court for Dane County for a summary judgment and from the judgment entered thereon; August C. Hoppmann, Judge.

The appeal from the order is dismissed and the judgment is affirmed.

This action was brought by Esther Witzko and Ida Beuthin against Ernest Koenig, Orlo Koenig, and Employers Mutual Indemnity Corporation to recover for damages arising out of an automobile accident which occurred on June 4, 1936, at the intersection of Highway 13 and County Trunk P about 4 miles east of Sauk City.

The appellants were occupants of a car driven by Leo Witzko. The automobile of the defendant Ernest Koenig was being driven by his son Orlo Koenig who, at the time of the accident, was fifteen years of age. At the time, he had a driving permit issued under section 85.08(1a), Wis.Stats., for persons between the ages of fourteen and sixteen, which allowed him to drive his father's motor vehicles during daylight hours. The collision in question occurred more than one-half hour after sunset. The automobile was insured in the respondent, Employers Mutual Indemnity Corporation, under a policy of insurance which excluded coverage while the automobile was driven “by any person in violation of any *** law as to age.”

On motion of the defendants, Leo Witzko and Farmers Mutual Insurance Company, a corporation, his insurance carrier, were impleaded. Thereafter, the respondent, Employers Mutual Indemnity Corporation, moved for a summary judgment dismissing the action as to it. On December 21, 1936, the court ordered such a judgment and on December 29, 1936, judgment was accordingly entered. The plaintiffs appeal from the order for a summary judgment and from the summary judgment entered thereon.

Appellants assign the following errors:

“(1) In ordering summary judgment dismissing the complaint as to the defendant and respondent, Employers Mutual Indemnity Corporation.

“(2) In entering judgment on said order dismissing that defendant.”Sanborn, Blake & Aberg, of Madison, for appellants.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondent.

MARTIN, Justice.

[1][2][3][4] The appeal from the order of December 21, 1936, granting the motion for a summary judgment must be dismissed. It is not an appealable order. Section 274.33 (1), Wis.Stats., permits an appeal from an order only when it prevents a judgment from which appeal can be taken. Since an order for judgment does not prevent a judgment, it is not appealable. Puhr, Adm'x, v. Chicago & N. W. Ry. Co., 168 Wis. 101, 169 N.W. 305, and cases cited. The right to appeal in civil proceedings is purely statutory and does not exist at all except when, and then only to the extent, granted by statute. Golden v. Green Bay Metropolitan Sewerage District, 210 Wis. 193, 200, 246 N.W. 505, and cases cited. An order denying an application for summary judgment is appealable. Section 274.33(3), Wis.Stats.1935; Loehr v. Stenz, 219 Wis. 361, 263 N.W. 373. The summary judgment statute, section 270.635, contemplates the entry of such judgment without delay when ordered by the court. An appeal may then be taken from the judgment as was done in the instant case.

On the appeal from the judgment, the following statutes are applicable:

“85.08 *** (1a). License to Child under sixteen years. Upon the recommendation in writing of the county judge of the county wherein the child resides the secretary of state shall issue an automobile driver's license to any child, otherwise qualified, who is less than sixteen but more than fourteen years of age. *** Such license shall entitle the child to whom it is issued to drive only an automobile belonging to his parent or guardian during daylight hours, that is from thirty minutes before sunrise to thirty minutes after sunset, and shall not authorize such child to drive a motor cycle, commercial truck, motor bus or taxicab. The parent or guardian shall at all times be responsible for any and all damages growing out of the negligent operation of a motor vehicle by any such child.”

“204.33. (1) No policy of insurance, agreement of indemnity or bond covering liability or loss arising by reason of the ownership, maintenance or use of a motor vehicle issued in this state shall contain any limitation or condition restricting the coverage afforded thereby as to the following: (a) to persons while driving or manipulating a motor vehicle, who shall be of an age authorized by law so to do.”

Section 204.34, Stats.1935:

“(1) No policy of insurance, agreement of indemnity or bond covering liability or loss arising by reason of the ownership, maintenance or use of a motor vehicle issued in this state shall exclude from the coverage afforded or provisions as to benefits therein any of the following: (a) Persons while driving or manipulating a motor vehicle, who shall be of an age authorized by law so to do.”

The policy provision relied upon by the respondent company as excluding coverage in the instant case provides:

“(c) Under coverages a, b, g and h, while the automobile is operated by any person under the age of fourteen years, or by any person in violation of any state, federal or provincial law as to age applicable to such person or to his occupation, or by any person in any pre-arranged race or competitive speed test.”

It is conceded that the collision in question occurred at 9:30 p. m. on June 4, 1936. On that day, sunset occurred at 7:32 p. m. It is further conceded that at the time of the collision the defendant Orlo Koenig, the driver of the car insured by respondent, was a minor fifteen years of age. He had theretofore obtained a special driver's license as authorized by section 85.08(1a), Stats.

[5][6] The appellants contend that the policy exclusion is broader and excludes more than sections 204.33 and 204.34, Stats., permit. That is, that we must take whichever exclusion is the narrower, the policy exclusion or the statute. We are of the opinion that there is no conflict between the exclusion clause of the insurance policy and sections 204.33 and 204.34, Stats. The contract of insurance provides that the respondent is not liable under its contract where the car is driven by a person in violation of law as to age. Under section 85.08(1a), the permittee is not allowed to drive in the nighttime. Because of his age, under no circumstances could he secure a permit to drive in the nighttime.

[7] We must hold that at the time of the collision in question his...