Zimmer v. Daun
| Decision Date | 26 November 1968 |
| Citation | 40 Wis.2d 627,162 N.W.2d 626 |
| Parties | Harvey L. ZIMMER, Plaintiff-Respondent, v. Roger DAUN and Roberts Dean, Defendant-Respondents, Fidelity and Casualty Company of New York, a foreign insurance corporation, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Tonjes & Mortensen, Fond du Lac, for defendant-appellant.
Byrne, Bubolz, Spanagel & Pfankuch, Appleton, for plaintiff-respondent.
Bonk, Lutz & Hertel, Chilton, for defendants-respondents.
The motion of Fidelity was based upon the proposition that as a matter of law Dean and Daun were not additional insureds under the policy and were not entitled to coverage thereof because they were not engaged in unloading the cement from the truck at the time of the accident within the meaning of the policy. In denying the motion the trial court did not assign any reasons thereof. Consequently, this court will assume the trial court considered it wanted to have the facts of the case determined by trial rather than deciding the policy extended coverage of the defendants Dean and Daun. The briefs on appeal, however, are addressed only to the question of the interpretation of the loading and unloading provisions of the policy. We do not reach that question on this appeal because we do not think the trial court considered it.
We point out the question is an interesting one and this court has not interpreted the loading and unloading provisions of an insurance policy as applied to the unloading or delivery of ready-mixed concrete. The cases involving such problem from other jurisdictions present no unanimous answer. 1 It is urged upon this court that Stammer v. Kitzmiller (1937), 226 Wis. 348, 276 N.W. 629, adopted the 'coming to rest' rule as determinative of the concept of 'unloading' a truck and requires a ruling in favor of Fidelity. The Stammer Case has been cited for such a rule Couch, Couch on Insurance 2d (1964), p. 196, sec. 45:127. It is argued that Hardward Mutual Cas. Co. v. St. Paul-Mercury Ind. Co. (1953), 264 Wis. 230, 58 N.W.2d 646, and Peterson v. Sinclair Refining Co. (1963), 20 Wis.2d 576, 123 N.W.2d 479, apply the 'completed operation' rule rather than the 'coming to rest' rule and require a denial of the motion because the ready-mixed concrete had not reached its destination in the forms when the accident happened. See also Raube v. Christenson (1955), 270 Wis. 297, 70 N.W.2d 639.
We cite these cases to show the importance of this question of the interpretation of the loading and unloading clause in an insurance policy as applied to the delivery of ready-mixed cement. A trial court need not decide a question of law on a motion for summary judgment under sec. 270.635, Stats., even though no conflict of material facts exists. There is no absolute right to summary judgment. We recently pointed this out in Schuster v. Germantown Mutual Insurance Co., 162 N.W.2d 129 (handed down Oct. 29, 1968).
We think sec. 270.635, Stats., providing for summary judgment, does not confer a right to summary judgment but rather confers on the trial court a discretionary power to grant summary judgment when it believes summary disposition of a case is called for. The language of this section provides that 'Summary judgment may be entered' as provided in the section and that 'The judgment may be entered in favor of either party.' In...
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...cases have noted the absence of a causal relationship between the truck and the injury which eventually occurred. In Zimmer v. Daun, 40 Wis.2d 627, 162 N.W.2d 626 (1968), the Wisconsin court was presented with this issue but did not decide it. There as here, a truck delivered ready-mixed co......
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