Opinion
November 28, 1966 —
January 3, 1967.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellant there was a brief by Shields Lang of Hales Corners, and oral argument by Willis E. Lang.
For the respondent there was a brief and oral argument by Gerald P. Hayes of Milwaukee.
This is an action to recover damages for personal injuries sustained by the plaintiff, Louis A. Petzak, as a result of the alleged negligence of the defendant, Lawrence F. Graves, driver and owner of the automobile in which plaintiff Petzak was a passenger.
Defendant Lawrence Graves is the assessor of the village of Hales Corners and also operates an appraisal business. In 1960 Petzak was hired by Graves to assist him in performing both of his jobs. Petzak was paid by Graves. Graves was paid by the village as the assessor. Petzak, in addition to suing Graves to recover for his personal injuries, filed a claim for workmen's compensation against the village and its insurer, Employers Mutual Casualty Company, and was granted an award on December 20, 1962.
On December 12, 1963, the plaintiff Petzak served an amended summons and complaint, adding as a defendant, the American Surety Company of New York, the liability insurer of the village of Hales Corners, alleging coverage for Graves as an "executive officer" under the comprehensive automobile liability policy issued to the village. Thereafter the defendant Graves cross-complained against American Surety Company, alleging coverage under the automobile liability policy and also under the comprehensive general liability policy.
The following are pertinent provisions of the American Surety Company comprehensive automobile liability policy:
"I. Coverage A — Bodily Injury Liability
"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.
". . .
"III. Definition of Insured
"The unqualified word `insured' includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a nonowned automobile in the business of the named insured. The insurance with respect to any person or organization other than the named insured does not apply:
". . .
"(c) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer;
". . .
"(e) with respect to any non-owned automobile, to any executive officer if such automobile is owned by him or a member of the same household."
The following are pertinent provisions of the American Surety Company's comprehensive general liability policy:
"I. Coverage A — Bodily Injury Liability
"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.
". . .
"III. Definition of Insured
"The unqualified word `insured' includes the named insured and also includes any executive officer, director or stockholder thereof while acting within the scope of his duties as such, and any organization or proprietor with respect to real estate management for the named insured. If the named insured is a partnership, the unqualified word `insured' also includes any partner therein but only with respect to his liability as such."
" Exclusions
"This policy does not apply:
"(c) except with respect to operations performed by independent contractors and except with respect to liability assumed by the insured under a contract as defined herein, to the ownership, maintenance, operation, use, loading or unloading of (1) watercraft if the accident occurs away from premises owned by, rented to or controlled by the named insured, except insofar as this part of this exclusion is stated in the declarations to be inapplicable, (2) automobiles if the accident occurs sway from such premises or the ways immediately adjoining, or (3) aircraft."
The defendant American Surety Company denied coverage under either policy and moved for summary judgment, dismissing the plaintiff's complaint against American Surety Company and defendant Graves' cross complaint against American Surety Company. The summary judgment motion was granted on July 30, 1965. Defendant Graves appeals from the judgment. Plaintiff Petzak did not appeal.
The following two issues are presented on this appeal:
1. Is the official assessor of an incorporated village an "executive officer" within the meaning of two policies of liability insurance issued to the village which includes in the definition of insured "an executive officer of the named insured?"
2. Is the automobile owned by Graves "any automobile described" in these policies so as to render applicable sec. 204.30, Stats.?
Defendant Graves' first contention is that coverage is extended to him because as a village tax assessor he is an "executive officer" of the village, and the two policies issued to the village extended coverage to any "executive officer." The first question for determination is whether or not defendant Graves as the village tax assessor is an "executive officer."
Black's Law Dictionary (4th ed. 1951), defines:
"Executive Officer. An officer of the executive department of government; one in whom resides the power to execute the laws; one whose duties are to cause the laws to be executed and obeyed."
Black's Law Dictionary further defines "ministerial officer" as one whose duties are purely administrative and not involving discretion.
In 67 C.J.S., Officers, pp. 105, 106, sec. 3, it is stated:
"With respect to the nature of the duties pertaining thereto, public offices and officers are sometimes classified as either executive, legislative, judicial, or ministerial . . .
" Executive. An executive officer is one in whom resides the power to execute the laws; one whose duties are mainly to cause the laws to be executed and obeyed. . . .
". . .
" Ministerial. A ministerial office is an office which gives the officer no power to judge of the matter to be done, and requires him to obey the mandates of a superior;. . ."
The village assessor has. only ministerial duties, and he is not called upon to make policy decisions.
Sec. 61.27, Stats., in effect requires the assessor to make an assessment of all the property in his village liable to taxation in the manner prescribed by law and to return his assessment roll to the village clerk at the time and in the same manner in which town assessors are required to do.
Assessors of taxes are held to be ministerial officers. Cleveland C. C. St. L.R. Co. v. People (1904), 212 Ill. 638, 72 N.E. 725, 726; Plumer v. Board of Supervisors of Marathon County (1879), 46 Wis. 163, 178, 50 N.W. 416.
We conclude there is nothing in the duties of a village assessor or inherent in the office itself which compels the defining of an official assessor as an executive officer. We further conclude that defendant Graves was a ministerial officer and not an executive officer of the village of Hales Corners; and, consequently, he was not covered by the two policies of insurance issued by the American Surety Company to the village of Hales Corners.
The next contention is that, in any event, if Graves is not an executive officer, he is covered by virtue of sec. 204.30, Stats., the Wisconsin omnibus statute. The question for determination on the above contention is whether or not Graves' automobile is covered by the insurance policy issued to the village of Hales Corners. If it is not covered by the policy, there is no reason to determine whether or not an additional insured is being covered to a lesser extent than the named insured.
Excluding Graves under the terms of the automobile liability policy does not violate the legislative intent of sec. 204.30(3), Stats., because the Graves' automobile is not an automobile described in the policy. Before there is coverage as an additional insured, it must be determined that the automobile is one described by the policy. Graves' automobile was not owned by the insured village, maintained by it, nor was the use of it extended to the village.
Counsel for Graves cites the case of Severin v. Luchinske (1955), 271 Wis. 378, 73 N.W.2d 477, as having facts identical to the case at bar. This is not a correct analysis. In the Severin Case, supra, the vehicle involved was owned by the city of Wisconsin Rapids and insured by it in Milwaukee Automobile Insurance Company, Ltd. In the case at bar the automobile was owned by Graves and was not insured by American Surety Company. The Severin Case, supra, held that the omnibus statute operated to extend policy coverage to the defendant driver who was an employee of the named insured city. In the case at bar Graves was an employee of the village of Hales Corners, but the automobile he was driving was his own and was not insured by the village of Hales Corners. Therefore, the omnibus clause is not involved in this case under either the comprehensive automobile liability policy or the comprehensive general liability policy.
Under the comprehensive liability policy and under the definition of "insured" the only persons insured were "the named insured and any executive officer, director or stockholder thereof." Graves was none of these.
We conclude that the defendant Graves was not covered as an additional insured under either of the insurance policies in question and that sec. 204.30 (3), Stats., is not applicable under either policy of insurance.
By the Court. — Judgment affirmed.