Summary
In Raymond v. Century Indemnity Co., 264 Wis. 429, 431, 59 N.W.2d 459, 460, the provision for interpretation was "with the permission of an adult member of such assured's household.
Summary of this case from Goodsell v. State Auto. Cas. UnderwritesOpinion
June 3, 1953 —
July 3, 1953.
APPEAL from a judgment of the circuit court for Monroe county: LINCOLN NEPRUD, Circuit Judge. Reversed.
For the appellant there was a brief by Stafford Stafford, attorneys, and Robert F. Pfiffner of counsel, all of Chippewa Falls, and oral argument by Mr. Pfiffner.
For the respondent there was a brief by Hale, Skemp, Nietsch, Hanson Schnurrer of La Crosse, and oral argument by R. E. Nietsch.
Action commenced March 26, 1952, by A. W. Raymond, d/b/a Raymond Distributing Company for damages. Judgment was entered in favor of defendant dismissing the plaintiff's complaint. Plaintiff appeals.
William Hasseler, son of Mrs. Ruth Hasseler, who had lived with his mother all his life until he was taken into military service, was at the time here involved on duty at Camp McCoy in the state of Wisconsin. He had in his possession, with his mother's consent, an automobile which was licensed in her name. He loaned the car to one John Russell, who became involved in a collision with a truck of the plaintiff, resulting in damage to the plaintiff as well as fatal injury to Russell.
The action was begun against the Century Indemnity Company insurer of Mrs Hasseler, and it defended. There was proof of ownership of the automobile and that it was being driven by John Russell with the consent of Mrs. Hasseler's son.
There was an offer by the plaintiff to prove through the witness, Ruth Hasseler, that she permitted her son to take the automobile involved in the collision to Camp McCoy and to use it at any and all times and for any and all purposes; that William Hasseler was an adult member of the household of Mrs. Ruth Hasseler; that the liability insurance policy issued by defendant to Ruth Hasseler was in his possession and exhibited to Camp McCoy authorities; that the automobile in question was actually owned by William Hasseler, although the title was taken in Mrs. Hasseler for the reason that William was in military service; that, in fact, the son had exclusive control and right to do as he saw fit with the automobile, and that no permission was necessary for William to delegate permission for the use of the car.
Offer of proof was objected to, and the court ruled adversely to the plaintiff on several motions well calculated to bring before the court the facts just referred to. The court directed judgment in favor of the defendant, stating at the conclusion of the case:
"The court has already made its ruling and interpretation of the statement made by plaintiff's counsel as to further offer of proof in reference to William Hasseler, and the same having been objected to by the defendant's counsel and the court being satisfied that the same ruling should apply as to the offer of proof in reference to the testimony of Ruth Hasseler, the objection is sustained, and the record will show that the application of the plaintiff to reopen the case in chief be and the same is denied, further that the court also denies the request for reopening to permit the presentation of additional testimony by plaintiff's counsel."
The plaintiff complains of damage caused by the negligence of one John E. Russell and alleges that at the time Robert Hall, "the plaintiff's agent and servant was operating plaintiff's vehicle." The Century Indemnity Company was the insurer of Ruth Hasseler, owner of the automobile driven by John Russell, and it is set forth in the complaint that "the Century Indemnity Company issued its bond and policy of insurance covering the operator, the said John E. Russell." The Century Indemnity Company, in its answer, denies covering the operator John E. Russell, while operating said motor vehicle. The issue of liability thus arises, and the question is whether Russell was driving the car with the permission of the individual who was the named insured or "with the permission of an adult member of such assured's household."
The son of the named insured, Mrs. Ruth Hasseler, as set forth in the statement of facts, was in the armed forces of the United States and stationed at Camp McCoy, Wisconsin. It appears clearly enough that the son, twenty-two years of age, had lived with his mother at Green Bay until he entered the army; that he had his mother's automobile with him. We are of the opinion that nothing has occurred to legally destroy his status as an adult member of his mother's household. Therefore, his giving permission to Russell to use the car created a question of relationship which is the matter to be investigated under the pleadings. The trial court was in error in overruling plaintiff's offer to bring to the court's attention material and important facts bearing upon the son's right under the policy of the named insured to permit Russell to use the car and having that right relate back to his mother.
It appearing from the record that the real controversy has not been fully tried, it is considered that there must be a new trial. We do not find it necessary to labor the matter further as to whether proper motions were made. Sec. 251.09, Stats.
By the Court. — Judgment reversed, cause remanded with directions to set aside the judgment entered below and to grant a new trial.