November 6, 1952 —
December 2, 1952.
APPEAL from an order of the circuit court for Oconto county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellant there was a brief by Gold McCann of Milwaukee, and oral argument by Ray T. McCann.
For the respondent Augustus Zippel there was a brief by Lehner Lehner, Adolph P. Lehner, Howard N. Lehner, and Eugene E. Behling, all of Oconto Falls, and for the respondent Joseph E. Derocher by Krueger Plier and James E. Plier, all of Oconto Falls, and oral argument by Adolph P. Lehner.
For the respondents Ed. Murphy Construction Company, General Casualty Company of Wisconsin, and Ralph Murphy there was a brief by Benton, Bosser, Becker, Parnell Fulton of Appleton, and oral argument by David L. Fulton.
The plaintiff, Zippel, brought this action to recover for personal injuries sustained while a passenger in a truck driven by Joseph E. Derocher and owned by Country Gardens, Inc. The injuries were sustained as the result of a collision between the truck and another owned by one of the other defendants. Plaintiff and Derocher were coemployees of Country Gardens, Inc., and at the time of the accident were performing work in the course of their employment. All were subject to the provisions of the Workmen's Compensation Act.
Fireman's Fund Indemnity Company, joined as a defendant, had issued to Country Gardens, Inc., a policy of automobile liability insurance which contains the following exclusion:
"This policy does not apply: . . . (c) under coverage A, . . . to bodily injury to . . . any employee of the insured while engaged in the employment of the insured. . . .; or to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law;. . ."
This is an appeal from an order, made on April 12, 1952, denying a motion for summary judgment made by Fireman's Fund Indemnity Company.
Fireman's Fund Indemnity Company, the appellant, contends that the quoted exclusion provision relieves it of liability to plaintiff.
Sec. 204.30 (3), Stats., provides as follows:
"No such policy shall be issued or delivered in this state to the owner of a motor vehicle, unless it contains a provision reading substantially as follows: The indemnity provided by this policy is extended to apply, in the same manner and under the same provisions as it is applicable to the named assured, to any person . . . operating any automobile described in this policy when such automobile is being used for purposes and in the manner described in said policy. . . ."
Appellant's argument overlooks or seeks to ignore this statutory provision which by its terms makes it a part of the contract. It is not disputed that the truck was "being used for purposes and in the manner described in said policy." We agree with counsel that until Sandstrom v. Estate of Clausen, 258 Wis. 534, 46 N.W.2d 831, there had been some inconsistency in the court's previous decisions in cases concerned with the statute and similar policy provisions. Any doubt which might have existed as to their construction as applied to a situation such as we have here was removed, however, by the decision and opinion in that case.
We adhere to the rule of that case. By virtue of the statute Derocher was an additional assured entitled to the benefits of the policy.
By the Court. — Order affirmed.