Summary
In Bauer, the driver, again a young adult, had permission from her parents to drive the family car to a store to pick up some merchandise.
Summary of this case from Meshbesher v. State Farm Mut. Auto. Ins. Co.Opinion
February 7, 1961 —
March 7, 1961.
APPEAL from a judgment of the circuit court for Milwaukee county: MICHAEL T. SULLIVAN, Circuit Judge. Affirmed.
For the appellants there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, for the Hardware Mutual Casualty Company and Barbara Symes, and Ray T. McCann, attorney, for Lennie Bauer, and Rueben W. Peterson, Jr., Phillip E. Crump, and Leonard L. Loeb of counsel, all of Milwaukee, and oral argument by Mr. Crump.
For the respondent there was a brief by Hayes Hayes of Milwaukee, and oral argument by Hanlin J. Hayes.
An action for damages arising from personal injuries sustained by the plaintiff, Lennie Bauer, in an automobile accident on September 15, 1958, involving two automobiles, one driven by the plaintiff and the other by the defendant, Barbara Symes.
The complaint of Lennie Bauer alleges the collision was caused by the negligence of Barbara Symes; that defendant, Hardware Mutual Casualty Company, had insured Barbara Symes; that defendant, Mutual Service Casualty Insurance Company, had insured Anthony Rozewski, owner of the automobile operated by Barbara Symes.
In its answer, defendant Mutual Service Casualty Insurance Company alleged the defendant, Barbara Symes, contrary to the directions of the named insured and without permission, drove the automobile and became involved in the collision in question. That the policy of insurance issued to Anthony Rozewski excluded coverage for liability to any person operating the automobile in question without the permission of the named insured; that under the terms of the policy of insurance issued by Mutual Service Casualty Insurance Company to Anthony Rozewski, defendant Mutual Service Casualty Insurance Company was under no obligation to defend the defendant Barbara Symes for liability as a result of the accident.
In its answer, defendant Hardware Mutual Casualty Company, alleges that the insurance afforded by the policy issued by said company is excess insurance over the policy issued by Mutual Service Casualty Insurance Company to Anthony Rozewski, and covering Barbara Symes. For a cross complaint against Mutual Service Casualty Insurance Company, defendant Hardware Mutual Casualty Company alleges that defendant Barbara Symes was covered by the insurance policy issued by defendant Mutual Service Casualty Insurance Company, and that, under said policy, defendant Mutual Service Casualty Insurance Company was obligated to defend Barbara Symes in the present action.
On October 9, 1959, the plaintiff made a motion for a separate trial on the issues raised by the pleadings respecting insurance coverage as to Barbara Symes and requested separate trial before the trial of the damage and negligence issues. Separate trial was had and the trial court found that the Mutual Service Casualty Insurance Company is under no contractual or legal obligation to defend the defendant Barbara Symes for liability as a result of the accident in which she was involved on September 15, 1958, or to pay or satisfy all or any part of any verdict or judgment rendered by reason thereof. Judgment was entered dismissing the plaintiff's complaint and the cross complaint of the defendants Barbara Symes and Hardware Mutual Casualty Company against Mutual Service Casualty Insurance Company upon the merits.
Hardware Mutual Casualty Company, Barbara Symes, and the plaintiff Lennie Bauer, appeal from the judgment.
The issue in this case is whether Mutual Service Casualty Insurance Company's policy affords protection and insurance coverage to Barbara Symes.
The applicable provisions of the Mutual Service Casualty Insurance Company's policy are as follows:
"Part I — Liability. Persons insured: The following are insureds under Part I:
"(a) With respect to the owned automobile,
"(1) the named insured and any resident of the same household,
"(2) any other person using such automobile provided the actual use thereof is with the permission of the named insured;
"Definitions: Under Part I: `named insured' means the individual named in the declarations and also includes his spouse, if a resident of the same household;"
Anthony Rozewski was the owner of the automobile and his wife qualified as an insured, being his spouse and residing in the same household. Jean, the daughter, was also a resident of the household and was covered under the provisions of Part I (a) (1), as a resident of the household.
Barbara Symes was an occupant and passenger in the automobile and the automobile was driven by Jean, the daughter of the insured, with permission of the mother, for the purpose of picking up certain photographs at a studio located in Milwaukee. The testimony reveals that Alice Rozewski, the mother of Jean Rozewski, gave permission to her daughter to drive to the studio to pick up her class pictures. The mother knew that Barbara Symes was accompanying her daughter as a passenger in the automobile when they left for the studio. Jean Rozewski drove the automobile to a location across the street from the studio which location or place was adjacent to the curb and in a no-parking area. Jean left the automobile with the motor running and Barbara moved behind the wheel. While Jean was in the studio, a police officer came up to the automobile and informed Barbara that she could not park there legally and she informed the officer that she was waiting for her friend. She then blew the horn, Jean waved to her and there is some dispute as to what the waving indicated, and in the meantime a second police officer upon a motorcycle came up to the automobile together with the first policeman. Barbara then placed the car in motion and removed it from the parked area and proceeded along the highway to the place and point of accident.
The testimony further reveals that neither the father, Anthony Rozewski, the mother, Alice Rozewski, nor the daughter Jean had given permission to Barbara Symes to drive the automobile. The permission was extended solely to their daughter Jean. The permission was for restricted use of the automobile.
The issue then is — Do the facts in this case constitute an emergency that would create implied consent by the insured, Mrs. Alice Rozewski?
In Prisuda v. General Casualty Co. (1956), 272 Wis. 41, 74 N.W.2d 777, the facts were that permission was given to the son to use the mother's automobile to go on a swimming party. The testimony reveals that upon the return the son became tired or fatigued and his companion took over the wheel and drove the car and subsequently had an accident. In that case we held that there was time and opportunity to call the mother so as to ask permission for the son's friend to drive the automobile. We held that an emergency did not arise under those circumstances.
In the instant case, Jean parked her car illegally while the motor was in operation and left the car while the motor was running in a no-parking area, and continued her trip across the street to the studio for the purposes outlined by her mother.
We fail to find that any emergency could arise which would require implied consent so as to entitle Barbara Symes to operate the car from its parked position. The most that could have resulted from the illegal parking of the automobile by the daughter Jean, would have been an arrest for a parking violation. The driving of the automobile by Barbara Symes was without express or implied consent of the named insured in the Mutual Service Casualty Insurance Company policy, and Barbara Symes is not entitled to coverage. The judgment of the trial court is affirmed.
By the Court. — Judgment affirmed.
CURRIE and FAIRCHILD, JJ., dissent.