Krebsbach v. Miller

125 N.W.2d 408, 22 Wis. 2d 171, 4 A.L.R. 3d 1, 1963 Wisc. LEXIS 422
CourtWisconsin Supreme Court
DecidedDecember 20, 1963
StatusPublished
Cited by30 cases

This text of 125 N.W.2d 408 (Krebsbach v. Miller) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krebsbach v. Miller, 125 N.W.2d 408, 22 Wis. 2d 171, 4 A.L.R. 3d 1, 1963 Wisc. LEXIS 422 (Wis. 1963).

Opinions

[175]*175Currie, J„

The sole issue on this appeal is whether at the time of the accident the car was being operated with the permission of the named insured within the meaning of the omnibus coverage clause of the policy.

Integrity Mutual concedes that the record on the motion for summary judgment discloses that a disputed issue of fact exists with respect to whether the named insured, George A. Malliet, placed any restriction upon his son’s use of the Ford automobile which he was permitted to take to Milwaukee. It contends, however, that, even if the named insured had turned the automobile over to his son without voicing any express prohibition against letting someone else use it, the use of the car by Alfred Miller was without the permission of the named insured, and thus there was no coverage with respect to plaintiffs’ injuries. Therefore, for the purposes of this opinion we will assume that the named insured turned the car over to his son without imposing any express restriction as to its use.

A careful research of the authorities in the country generally bearing on the instant issue has caused us to approve the following statement appearing in 7 Am. Jur. (2d), Automobile Insurance, p. 431, sec. 116:

“It has frequently been stated that, as a general rule, the permission given by the named insured to another to use the named insured’s car does not authorize the permittee to allow a third party to use the car, and that if the permittee does allow a second permittee to use the car, such use is not swith the permission of the named insured’ as those words are used in the omnibus clause. However, the effect of this strict rule has been greatly diluted by reason of the fact that, many of the courts recognizing the rule have substantially modified it by stating that in every case where the first per-mittee permits another to use the insured automobile, a factual determination must be made whether the initial grant of permission was broad enough to include an implied grant [176]*176to the permittee of authority to give another use of the automobile and thus render the latter an additional insured under the omnibus clause.” (Italics supplied.) 1

The statement by this court, “In the absence of express permission, the scope of the permission must be determined by the circumstances,” in the recent case of Harper v. Hartford Accident & Indemnity Co. (1961), 14 Wis. (2d) 500, 509, 111 N. W. (2d) 480, is in accord with the italicized portion of the above quotation from 7 Am. Jur. (2d), supra„ Before examining the situations in which the named insured will be deemed to have given implied permission to a third person to operate the insured vehicle, we must ever keep in mind that this court is committed to a broad, rather than narrow, construction of the word “permission” as it appears in the policy omnibus coverage clause required by sec. 204.30 (3), Stats. Pavelski v. Roginski (1957), 1 Wis. (2d) 345, 84 N. W. (2d) 84.

One of the situations in which the named insured is held to have given implied permission to a third person to drive is when the first permittee, to whom the car was intrusted by the named insured without any express prohibition against letting another drive, retains possession of the car but turns over its operation to another while such first permittee remains an occupant of the car.2 Standard Accident Ins. Co. v. New Amsterdam Casualty Co. (7th Cir. 1957), 249 Fed. (2d) 847; Butterfield v. Western Casualty & Surety Co. (1960), 83 Idaho 79, 357 Pac. (2d) 944; Fireman’s Fund Indemnity Co. v. Freeport Ins. Co. (1961), 30 Ill. [177]*177App. (2d) 69, 173 N. E. (2d) 543; Costanzo v. Pennsylvania Threshermen, etc., Ins. Co. (1959), 30 N. J. 262, 152 Atl. (2d) 589. Mauer v. Fesing (1940), 233 Wis. 565, 290 N. W. 191, held that in such situation the named insured has consented to such use because the initial permission to use the car was not restricted to actual operation by the first permittee. See also Schimke v. Mutual Automobile Ins. Co. (1954), 266 Wis. 517, 64 N. W. (2d) 195, although the result in that case expressly was not grounded on the omnibus coverage statute (sec. 204.30). Even where the first permittee is not a passenger, an inference of permission may arise where the third person is engaged on some errand or activity for the benefit, advantage, or purposes of the first permittee. Harrison v. Carroll (4th Cir. 1943), 139 Fed. (2d) 427, and Aetna Life Ins. Co. v. Chandler (1937), 89 N. H. 95, 193 Atl. 233.

Another fact situation which may support a finding of implied permission is where the named insured has knowledge that the first permittee is loaning the use of the insured vehicle to others and nevertheless remains silent. Shoup v. Clemans (Ohio App. 1939), 31 N. E. (2d) 103, and Odden v. Union Indemnity Co. (1930), 156 Wash. 10, 286 Pac. 59, 72 A. L. R. 1363.

Also, where for all practical purposes the first permittee is the real owner of the car but title has been taken in the name of the named insured for reasons of convenience, the general control and custody of the first permittee is such that, when he grants permission to a third person to operate the insured vehicle, such operation is held to be with the implied permission of the named insured. Indiana Lumbermen’s Mut. Ins. Co. v. Janes (5th Cir. 1956), 230 Fed. (2d) 500; and Hinchey v. National Surety Co. (1955), 99 N. H. 373, 111 Atl. (2d) 827. Cf. Schimke v. Mutual Automobile Ins. Co., supra.

[178]*178In the instant case the named insured turned possession of the insured car over to his son to take it 130 miles distant and there use it for a period extending over several months. The majority of this court conclude that under such circumstances, absent an express prohibition against permitting others to drive the car, such circumstances will require a finding that the named insured gave defendant Alfred Miller implied permission to operate the car at the time and place of the instant accident. The only reasonable inference to be drawn from such circumstances is that the son was to exercise the same control over the use made of the car that an owner would. The New Jersey court recently declared in Baesler v. Globe Indemnity Co. (1960), 33 N. J. 148, 152, 162 Atl. (2d) 854:

“Thus, it is almost universally held in the modern cases that where the named insured grants his permittee broad and unfettered dominion over his insured automobile, he also impliedly authorizes his permittee to allow a third person to use it, and thus to render him an additional insured. [Citing cases.] The first permittee, by being granted complete dominion over the insured automobile, is put in the shoes of the named insured, and therefore his permittee is held to be the named insured’s permittee.”

We also deem apposite the statement made by the Fifth circuit court of appeals in Indiana Lumbermen’s Mut. Ins. Co. v. Janes, supra (230 Fed. (2d) at page 503) :

“Of course, in this automobile age, a common thing for an automobile owner is to loan the car to friends, business associates, acquaintances, and others for personal use of the permittee wholly unrelated to the business or interest of the vehicle owner.”

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Bluebook (online)
125 N.W.2d 408, 22 Wis. 2d 171, 4 A.L.R. 3d 1, 1963 Wisc. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krebsbach-v-miller-wis-1963.