Opinion
October 5, 1961 —
October 31, 1961.
APPEAL from an amended judgment of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Reversed with directions.
For the appellant there were briefs by Smith, Puchner, Tinkham Smith, attorneys, and John E. Bliss of counsel, all of Wausau, and oral argument by Mr. Richard P. Tinkham and Mr. Bliss.
For the respondent Marvin Dahlke there was a brief by Crooks Crooks of Wausau, and oral argument by Leo D. Crooks.
For the respondents June Roeder and State Farm Mutual Automobile Insurance Company there was a brief by Schmitt, Wurster Tinglum of Merrill, and oral argument by Leonard F. Schmitt.
Action by plaintiff-respondent Marvin Dahlke to recover damages for personal injuries sustained when his car, driven by the defendant-respondent June Roeder, struck him. The defendant State Farm Mutual Automobile Insurance Company, hereinafter referred to as "State Farm," insured June Roeder, and the defendant Mutual Service Casualty Insurance Company, hereinafter referred to as "Mutual Service," insured Marvin Dahlke.
The case was tried to a court and jury. The jury found June Roeder causally negligent and at the time of the accident the plaintiff's auto was being used by her with the plaintiff's permission. Damages were assessed in the total amount of $10,570.50. The court entered judgment on the verdict for the plaintiff against June Roeder and Mutual Service and dismissed the plaintiff's complaint and Mutual Service's cross complaint against State Farm on the ground State Farm's policy was excess coverage. Mutual Service appealed.
Marvin Dahlke had agreed to help Leroy Kage load a truck with cheese at the Pauly Cheese Company plant in Marathon on the evening of June 30, 1957. He arrived at the plant late, having been at the centennial celebration which was in progress in Marathon City. He found his cousin Hubert Dahlke about to work in his place. Marvin suggested to Hubert that he take Marvin's car back to the celebration and return in about two hours to pick him up. Hubert had never driven Marvin's car before. At the celebration, Hubert met his sister June Roeder and her husband. At about 8:30 p. m., Hubert returned to the cheese plant accompanied by June and Elroy Roeder. Hubert parked the car facing a concrete loading dock with the front end of the car about eight or 10 feet from the dock.
Marvin Dahlke was not finished with his work but he and Leroy Kage stopped work to visit with Hubert and the Roeders who got out of the car for awhile and stood near the dock, talking. They, along with the plaintiff, moved to the rear of the car to look into its trunk. There is a conflict in the evidence whether or not the car key was needed or used to open the trunk door. The witnesses, other than the Roeders, testified the trunk was opened without taking the key from the ignition switch. Roeders testified that someone took the keys from the ignition to open the trunk door and that Marvin Dahlke tossed the keys to June after the trunk door was closed and she placed the keys in the ignition switch. There was no conversation concerning the keys at that time. Roeders then got back in the front seat of the car with June occupying the middle front seat where she had been sitting when Hubert drove the car back to the cheese factory. They waited for Hubert Dahlke to finish talking with Marvin. During that time, Hubert and Marvin were standing in front of the car facing the loading dock with their backs to the car, talking to Leroy Kage who was on top of the loading dock.
Marvin testified that while he was talking with Hubert and Leroy Kage, he stated, "Youse take the car back to the celebration," and meant any one of the three could drive — Hubert, June, or her husband. At the time he made the statement, Marvin did not know whether the Roeders were in the car or not, but were not in his immediate vicinity. June Roeder testified she heard Marvin make the statement.
After sitting in the car ten to fifteen minutes, June Roeder slipped into the driver's seat, turned on the ignition switch and started the engine. She testified her sole purpose was to let Hubert know, she and her husband were anxious to return to the celebration. After the motor of the car had been running a few minutes with June Roeder behind the wheel, the car started forward, struck the plaintiff and injured him. June Roeder testified she had no idea of why the car started to move and she had no intention of operating the car or shifting gears. However, in a written statement made before the trial, June Roeder stated she intended to back the car away from the loading dock and turn it around. She also stated she thought she was putting the car in reverse but it slipped into low gear and jumped forward. There was some testimony to the effect that on occasions there had been some difficulty with the car's jumping in and out of gear. Marvin and Hubert testified they had no expectation that June would drive the car and both intended Hubert would drive the car back to the celebration, which was also the intention of June. June Roeder had never driven Marvin Dahlke's car before. Additional facts will be given in the opinion.
The appellant raises several issues involving the admission and exclusion of evidence, the instructions, the rebuttal argument, and the proration of damages between the two insurance policies, but the more-important and decisive issue is whether there is evidence to sustain the verdict that June Roeder had permission to use the car at the time of the accident so as to become an additional insured under the omnibus clause of the Mutual Service policy. The policy defines "insured" to include "any other person using such automobile, provided the actual use thereof is with the permission of the named insured." The verdict was approved by the trial court after motions, which included one by the appellant, to change the answer to the permission question from "Yes" to "No." We must, therefore, examine the evidence in the light most favorable to sustain the verdict, Ruid v. Davis (1959), 8 Wis.2d 288, 99 N.W.2d 129, or stated another way, our inquiry is limited to the question of whether there is any credible evidence which, under any reasonable view, supports the verdict. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549; Vanderbloemen v. Suchosky (1959), 7 Wis.2d 367, 97 N.W.2d 183.
Much of the evidence was conflicting, not only between the witnesses but June Roeder herself gave contradictory testimony. But taking the evidence most favorable to the verdict, we do not find sufficient credible evidence from which a jury could reasonably draw the inference of permission within the meaning of that term in the policy and sec. 204.30 (3), Stats.
State Farm argues the finding of permission is sustained because Marvin Dahlke gave June the keys, he said "Youse take the car back," a statement June heard, and Marvin meant any one of the three, June, her husband, or Hubert, could drive. She had a driver's license and Marvin never said she could not drive. She got behind the wheel and started the motor. She was seated behind the wheel a few minutes before the accident. Marvin Dahlke was then in front of the car and presumably could see her position, yet he made no declaration she could not drive, and June Roeder, in a written statement made a little over a year after the accident, said she intended to back the car up and turn it around.
The difficulty with this evidence is the lack of internal connection and relationship between the several incidents. When the keys were tossed to June, she put them in the ignition and resumed her seat next to the driver's position where she had been sitting when Hubert drove the car to the cheese factory. Significantly, no words were spoken at that time. This is an unrelated incident and would not alone establish an implied consent to drive or use the car. Main v. Cameron (1961), 13 Wis.2d 15, 108 N.W.2d 142. At the most, it was an ambiguous act. True, Marvin knew his cousin had a driver's license and never said she could not drive. There was no occasion for Marvin to make such a statement.
Permission cannot be presumed from the knowledge a relative has a driver's license and the fact she had not been forbidden to drive. Implied consent to use one's car must proceed from and be manifested by some acts, words, or conduct of the permitter. Brochu v. Taylor (1936), 223 Wis. 90, 269 N.W. 711. State Farm presumes Marvin, when in front of the car, saw June at the wheel a few minutes before the accident and did not object, but the evidence is that Marvin had his back to the car and did not know the motor was running. On this evidence, no question of his negligence was submitted to the jury. June Roeder's statement that she intended to back the car up and turn it around is only evidence of her intention to use the car to that extent, but such intended use does not raise an inference of permission to do so.
Great stress is placed upon the statement of Marvin, "Youse take the car back." When this statement was made, Marvin was talking to Hubert Dahlke and Leroy Kage. He did not know where June was. Taking as true she overheard the statement, the remark was not addressed to her and she could not rely on it. There is no evidence she did. The word "youse" is dialect at best and means "you" which is both singular and plural. Webster's New International Dictionary (2d ed., unabridged). The most that can be said for Marvin's statement he meant any one of the three could drive is he did not care who drove. Both Marvin and Hubert did not expect June to drive and both intended Hubert to drive. It is possibly true Marvin would have given permission to June to drive or would not have objected to her driving, but what he might have done is not implied permission. Mere presumption that permission had been given or would be given if asked is not enough. Bro v. Standard Accident Ins. Co. (1927), 194 Wis. 293, 215 N.W. 431.
Taking this evidence together in chronological order and giving it as much unity as possible, it does not reasonably spell out an inference of implied permission or constitute a basis from which an inference of permission to June could be reasonably drawn by a jury.
State Farm advances the proposition that June Roeder was covered by the Mutual Service policy regardless of permission to drive from Marvin. This argument proceeds on the theory that the terms "use" or "using" have a broader meaning than the term "operation" as used in the omnibus clause, and since the policy provides coverage one using the automobile with permission of Marvin, June did not need consent to drive the car. Counsel relies on Schimke v. Mutual Automobile Ins. Co. (1954), 266 Wis. 517, 64 N.W.2d 195, and Maurer v. Fesing (1940), 233 Wis. 565, 290 N.W. 191. Apparently the argument is that June, while behind the wheel, was not driving but using the car with Marvin's consent and, therefore, was an additional insured. Counsel has incorrectly analyzed Fesing and Schimke. These cases would be applicable if Hubert had allowed June to drive and he became a passenger while the car was being used for the purpose of going back to the celebration. These cases are not applicable to the facts here. Behringer v. State Farm Mut. Automobile Ins. Co. (1957), 275 Wis. 586, 82 N.W.2d 915, correctly pointed out the holding in the Schimke and Fesing Cases. The doctrine of initial permission, as applied in Wisconsin, has been analyzed and discussed in Harper v. Hartford Accident Indemnity Co., ante, p. 500, 111 N.W.2d 480.
Some of the other errors assigned by the appellant have merit, but it is not now necessary to discuss them because the amended judgment must be reversed and the jury answer to question 4 in the verdict changed from "Yes" to "No." This will result in a judgment for the plaintiff on the verdict as amended against June Roeder and her insurer State Farm and a dismissal of the complaint against Mutual Service.
By the Court. — Judgment reversed, and the cause remanded with directions to change the answer to question 4 in the verdict from "Yes" to "No" and to enter judgment on the verdict as changed in favor of the plaintiff against June Roeder and State Farm, and dismissing the complaint against Mutual Service.
FAIRCHILD. J., dissents.