Summary
In Graf, an inoperable vehicle was towed to a service station for repairs. During the course of these repairs, the mechanics attempted to start the engine by pouring gasoline into the carburetor as the ignition switch was turned.
Summary of this case from McNeil v. HansenOpinion
October 30, 1967. —
November 28, 1967.
APPEAL from an order of the circuit court for Winnebago county: ARNOLD J. CANE, Circuit Judge. Reversed.
For the appellants there was a brief by Fulton, Menn Nehs, attorneys, and Peter S. Nelson of counsel, all of Appleton, and oral argument by Mr. Nelson.
For the plaintiff-respondent there was a brief by Patri, Nolan, Crane Engler and Gary R. Yakes, all of Oshkosh, and oral argument by Mr. Yakes.
This is a negligence action brought to recover damages for personal injuries. The order appealed from denied a motion for summary judgment made by the defendant-appellant, General Accident Fire Life Assurance Corporation, the insurer of the defendant, Daniel Bloechl. The motion was predicated upon the contention that General Accident could not be made a party to the suit by virtue of a "no-action" clause in its insurance contract with Bloechl.
This clause provides: "No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company."
The accident occurred on June 5, 1963, at an automobile service station operated by the impleaded defendant, Joseph Langkau, located in the city of Oshkosh.
Prior to the day of the accident the defendant Bloechl had installed a rebuilt engine in his 1956 Chevrolet. He had taken the engine apart and had replaced the bearings; had taken the distributor off; and turned the cam shaft. These repairs caused the engine to be out of time so that the pistons would not fire properly.
The day before the accident the defendant, Richard Bork, also a minor and a friend of Bloechl's, together with Bloechl, towed the Chevrolet to Langkau's station for the purpose of completing the repairs by timing the engine.
The day of the accident Bloechl and Bork were attempting to set the ignition timing and the valves to get the engine in operable condition. The hood was up, the air cleaner and rocker arm cover for the right cylinders were off. The carburetor and the gasoline line were empty. The fuel pump was inoperable and would be until the engine was started.
In order to make the ignition and timing adjustments it was necessary to start the motor. Because there was no gasoline in the carburetor Bork took a cupful of gasoline and poured some through the hole at the air cleaner seat so that the carburetor and pistons could get fuel. At the same time Bloechl turned on the ignition and engaged the starter in an attempt to start the motor. When the starter turned the crankshaft there was a backfire with flames coming up through the carburetor and air cleaner seat. This flame ignited the gasoline in the cup in Bork's hand. He spontaneously threw the cup over his shoulder. The cup and the burning gasoline struck the plaintiff, David L. Graf, and he was quite severely burned.
Graf was also a minor and a friend of both Bloechl and Bork. By prearrangement he met them at Langkau's service station to go swimming. They intended to ride to the swimming area in Bloechl's car.
The plaintiff, Graf, walked "to the station to become passenger" and watched Bloechl and Bork work on the car while awaiting the "use of the vehicle for transportation."
Graf brought this action against Bloechl and Bork and their respective insurance carriers. Joe Langkau was impleaded as a defendant.
Bork's insurer, Lumbermens Mutual Casualty Company, demurred to the complaint on the ground that the complaint did not state a cause of action against it. The demurrer was sustained dismissing Lumbermens Mutual as a party defendant.
Defendant Bloechl and his insurer, General Accident, moved for summary judgment dismissing General Accident as a party defendant. This motion was denied without opinion. From this order defendant Bloechl and his insurance carrier, General Accident Fire Life Assurance Corporation, have appealed.
This issue is whether Bloechl's insurance carrier, General Accident, can be named as a party defendant under the "direct action" statute (sec. 260.11 (1)).
The two pertinent statutes are:
"204.30 (4) Any bond or policy of insurance covering liability to others by reason of the operation of a motor vehicle shall be deemed and construed to contain the following conditions: That the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, irrespective of whether such liability be in praesenti or contingent and to become fixed or certain by final judgment against the insured, when caused by the negligent operation, maintenance, use or defective construction of the vehicle described therein, such liability not to exceed the amount named in said bond or policy." (Emphasis added.)
"260.11 (1) . . . In any action for damages caused by the negligent operation, management or control of a motor vehicle, any insurer of motor vehicles, which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action of the plaintiff or any of the parties to such claim or action, or which by its policy agrees to prosecute or defend the action brought by the plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action, or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured. The right of direct action herein given against an insurer against liability for damages to persons other than the insured arising out of the negligent operation, management or control of a motor vehicle shall exist whether the policy of insurance sued upon was issued or delivered in the state of Wisconsin or not and whether or not the policy or contract of insurance contains a provision forbidding such direct action, provided the accident or injury occurred in the state of Wisconsin." (Emphasis added.)
In Frye v. Angst (1965), 28 Wis.2d 575, 579, 137 N.W.2d 430, we stated:
"Sec. 204.30 (4), Stats., provides for the direct liability of the insured to the injured party when the conditions of that section are met. Sec. 260.11 (1) is a procedural statute to allow direct action by the injured party against the insurer when the conditions of that section are met."
The legislative history of these two statutes was reviewed extensively in Frye v. Angst, supra. It was there held that sec. 260.11 and sec. 204.30 (4), Stats., were not coextensive and that in an action based on the negligent "maintenance" of a motor vehicle sec. 260.11 (1) does not apply permitting insurers to be joined directly as defendants. Therefore, direct action can only be predicated upon the language of sec. 260.11 (1). The narrow question upon which the issue turns is whether the act of defendant Bloechl in attempting to start the car was an act of "operation, management or control" within the meaning of sec. 260.11 (1), or whether Bloechl and Bork were engaged in "maintenance" of the vehicle.
This court stated in the Frye Case, supra, that sec. 260.11 (1), Stats., could not be construed beyond the scope of the legislature's intention as it appeared from the language used in the statute, and that if sec. 260.11 (1) was to be broadened it should be amended by the legislature, not by strained judicial construction. In response, the legislature amended sec. 260.11 (1), including therein the language of sec. 204.30 (4), viz: "Maintenance, use or defective construction." (Ch. 14, Laws of 1967, published March 31, 1967.) This amendment did not exist at the time of the accident in the case at bar. Retroactivity is not an issue herein.
Several recent cases which construe sec. 260.11, Stats., were reviewed in Farmers Mut. Ins. Co. v. Fischer (1967), 34 Wis.2d 322, 327, 328, 149 N.W.2d 566. The discussion of those cases need not be restated here. They do point out that this court has adopted a rule of liberal construction of sec. 260.11 (1). However, a liberal construction can go no further than the scope of the words of the statute. The common thread running through these cases is that the act claimed to be negligent must be reasonably related to the actual use as a motor vehicle to be included within the statutory words "operation, management or control."
Under usual circumstances the starting of a motor vehicle would be considered an act reasonably related to the use of the vehicle. However, the usual circumstances are not before the court in the case at bar. Even though it is alleged that one reason Bloechl was attempting to start the car was to take himself and the others swimming, this was not Bloechl's primary or immediate purpose. The vehicle was inoperable; it had been towed to the service station. He first intended to complete repairs. The engine had not been timed so that it would run properly, if at all, before the accident occurred. Graf alleges that the engine "turned over," but whether it "turned over" by virtue of engaging the starter motor or whether it did so independently does not appear. In any event, merely because the engine "catches" and "turns over" does not necessarily mean that it is capable of being operated on the highway. The timing adjustments still had to be made before the automobile was usable. Further, the engine at this time was not completely assembled. The air cleaner was not in place and the rocker arm cover on one side of the engine had not been replaced. It is difficult to believe that it was Bloechl's intention to drive the car when he attempted to start it in view of the work remaining to put the car in proper order. It is highly probable that the car would have been turned off after the adjustments were made if not to replace the disassembled parts, to see if it would start properly.
The only reasonable conclusion under these circumstances is that Bloechl's primary intention and purpose in attempting to start the car was to finish the repairs. The attempted starting of the car in this situation cannot be considered to be a "use" or "operation, management or control" of the motor vehicle.
In Gullickson v. Western Casualty Surety Co. (1962), 17 Wis.2d 220, 116 N.W.2d 121, this court considered on near identical facts whether an automobile was being "used." The insurance policy in that case covered accidents occurring in the service station involved, but excluded coverage of accidents connected with the use of an employee's vehicle. Nelson and Dennis, employees, were working on Nelson's car attempting to start it in exactly the same manner used in the case at bar (pouring gasoline into the open carburetor to prime the engine). The gasoline ignited when Nelson turned on the ignition. The court held that under these circumstances this could not be considered a "use" of the employee's vehicle. The court said, at pages 223, 224:
"We are not so satisfied that the attempt to start the motor, including turning on the ignition, under the circumstances was a `use' of the automobile, whether or not such automobile was owned by an employee or a third party.
". . .
". . . From what we have just said it certainly cannot be held as a matter of law that Nelson's activities constituted a use of the automobile which he was trying to start. Although, if pressed, we would be inclined to hold as a matter of law this activity was not a use of the car. . . ."
And in Frye v. Angst, supra, at page 582, this court said:
"`Maintenance' of an automobile has never been considered a part of operation, or of management and control. Maintenance connotes a state of physical repair; management and control refers to the manner of its use. And even in their dictionary senses these words do not readily admit of the inclusion of maintenance." (Emphasis supplied.)
The attempt to start the motor in the case, at bar was a part of the process of repair and consequently an act of "maintenance," not "use, operation, management or control" of the vehicle. Sec. 260.11 (1), Stats., does not, therefore, contravene the "no-action" clause in the insurance contract. General Accident Fire Life Assurance Corporation should be dismissed as a party to the action.
By the Court. — Order reversed with directions to grant the motion for summary judgment and enter judgment dismissing the complaint as to the defendant General Accident Fire Life Assurance Corporation.