Opinion
November 1, 1960 —
November 29, 1960.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellant there was a brief by Clifford Fitzpatrick and James A. Fitzpatrick, all of Watertown, attorneys, and Denis J. Regan and John H. Regan, both of Milwaukee of counsel, and oral argument by James A. Fitzpatrick.
For the respondents there was a brief by Hart, Kraege, Jackman Wightman of Madison, for the Hardware Dealers Mutual Fire Insurance Company, and Roberts, Boardman, Suhr, Bjork Curry of Madison, for Adolph Asleson, and oral argument by W. L. Jackman and by Henry A. Field, Jr., of Madison.
Action to recover damages under the terms of two insurance policies.
The complaint alleged that prior to December 25, 1956, the defendant Hardware Dealers Mutual Fire Insurance Company issued a policy of automobile liability insurance to the plaintiff by the terms of which said insurance company agreed to pay on behalf of the plaintiff all sums which he became legally obligated to pay as damages for bodily injury liability or property damage liability of another arising out of the use of any automobile.
The complaint further alleged that prior to the same date the defendant Milwaukee Automobile Mutual Insurance Company issued a policy of automobile liability insurance to Eleanor Asleson, wife of the plaintiff, by the terms of which policy said insurance company agreed to pay on behalf of the plaintiff, Adolph Asleson, all sums which he became legally obligated to pay as damages for bodily injury liability or property damage liability of another arising out of the use of any automobile.
The complaint further alleged that on December 25, 1956, one Paul Dyreson was injured in an automobile accident because of the negligence of Richard Asleson, seventeen-year-old son of the plaintiff; that said Paul Dyreson commenced an action against the plaintiff and his said son; that the liability of the plaintiff was based upon an application to the Wisconsin motor vehicle department for a driver's license for his minor son (sec. 85.08 (9) (c), Stats. 1955); that following the trial thereof a judgment was entered against plaintiff and his son in the total sum of $6,992.22, including costs, and that said judgment was paid in full by the plaintiff herein on January 2, 1959; that following the accident the plaintiff notified agents of both insurance companies of the facts of the accident and both insurance companies advised plaintiff that neither would extend insurance protection to him; that after the commencement of the action both defendant insurance companies were notified and the defense of said action was tendered to them; that plaintiff was required to employ counsel to defend said action on his own behalf and that he incurred other necessary expenses incident to the defense of said action; that plaintiff demanded of both defendant insurance companies that he be reimbursed in the amount of said judgment and his attorneys' fees and costs but said insurance companies refused to pay the same.
After issue had been joined, plaintiff moved for summary judgment against the defendants. In support of his motion plaintiff filed an affidavit stating the facts alleged in the complaint and having attached thereto the insurance policy issued by Milwaukee Auto and a copy of a portion of the insurance policy issued by Hardware Dealers. A counter-affidavit was filed on behalf of the defendant Milwaukee Automobile Mutual Insurance Company.
The trial court at first refused to grant the motion for summary judgment because the insurance policy of the defendant Hardware Dealers Mutual Fire Insurance Company was not sufficiently set forth in the moving papers and because there was a dispute as to the amount of attorneys' fees and expenses to be allowed in addition to the amount of the judgment. Thereafter a copy of the policy of the defendant Hardware Dealers was filed and a stipulation was entered into that the reasonable costs of the defense of the plaintiff in the action brought against him by Paul Dyreson was the sum of $1,200, which included necessary attorneys' fees and disbursements. Thereafter, and on February 8, 1960, the trial court ordered judgment for the plaintiff against the defendants for the sum of $8,192.22 plus costs, the same to be paid on a prorata basis of two sevenths by Hardware Dealers and five sevenths by Milwaukee Auto, that ratio being in proportion to the coverage in each policy. A judgment in accordance therewith was entered on February 18, 1960, and the defendant Milwaukee Automobile Mutual Insurance Company appealed.
On the same date that this appeal was argued we announced our decisions in the cases of Klatt v. Zera, ante, p. 415, 105 N.W.2d 776, and Mancheski v. Derwae, ante, p. 467, 105 N.W.2d 773. Although not identical, the provisions of the insurance policies here involved were substantially the same as those set out in the Klatt and Mancheski Cases, supra.
At the time of the accident. Richard Asleson was not driving an automobile described in either of said policies but was driving one owned by his brother-in-law. The arguments advanced upon this appeal by Milwaukee Automobile Mutual Insurance Company were substantially the same as those advanced in the Klatt Case, supra. The only distinction mentioned by the appellant was that its policy was issued to the plaintiff's wife. However, the provision covering the use of other automobiles specifically provided that it covered the spouse of the named insured if a resident of the same household. Plaintiff met this requirement.
This case is governed by our decisions mentioned above and we will not extend this opinion by repeating the arguments advanced and answering the same.
By the Court. — Judgment affirmed.