Opinion
Nos. 81-83.
Argued February 3, 1970. —
Decided March 3, 1970.
APPEAL from an interlocutory judgment of the circuit court for Milwaukee county: ROBERT M. CURLEY, Circuit Judge. Reversed.
For the appellant there were briefs and oral argument by John W. Emmerling of Milwaukee.
For the respondent Gerald E. Strozewski there was a brief and oral argument by Charles Saggio of Milwaukee.
For the respondent Larry Wayne Schoenfeld there was a brief by William J. Calvano, attorney, and Anthony J. Brondino of counsel, both of Milwaukee, and oral argument by Mr. Calvano.
For the defendants third-party plaintiffs-respondents Gerald Strozewski and Maryland Casualty Company there was a brief by Prosser, Zimmermann, Wiedabach, Koppa Lane, attorneys, and James W. Lane of counsel, all of Milwaukee, and oral argument by James W. Lane.
This is an appeal from an interlocutory judgment which determined insurance coverage and was entered on February 17, 1969, in the circuit court for Milwaukee county. It was adjudged that the automobile driven by the defendant, Larry Wayne Schoenfeld, was a "temporary substitute automobile" within the definition of an automobile liability insurance policy issued by the appellant, American Family Mutual Insurance Company.
The lawsuit arose out of an automobile accident which occurred on October 18, 1963, when Larry Wayne Schoenfeld, driving a 1954 Oldsmobile owned by his mother, Rae Schoenfeld, collided with an automobile driven by Gerald E. Strozewski, whose automobile, in turn, struck the stationary automobile of Joseph G. Kahn, whose passenger at the time was Dennis Kahn.
Strozewski commenced an action for personal injuries against Larry Schoenfeld and American Family Mutual Insurance Company. Joseph Kahn and his collision insurer, Hanover Insurance Company, commenced an action for property damage against Strozewski, his insurer, Maryland Casualty Company, and Larry Schoenfeld. Both Joseph and Dennis Kahn commenced personal injury suits against Strozewski, his insurer, Maryland Casualty Company, and Larry Schoenfeld. Strozewski and his insurer impleaded American Family Mutual Insurance Company in the Kahn actions, alleging that its policy covered Larry Schoenfeld as the driver of the 1954 Oldsmobile. The actions were consolidated for determination of the insurance coverage issues raised. The parties stipulated to waive their rights to a jury trial.
It was learned at trial that Larry Schoenfeld's father, Marvin, was the title owner of a 1955 Buick, whose use was insured against liability by American Family Mutual Insurance Company. An additional premium of $44 was paid because it was estimated that Larry, then under twenty-five years of age, would use the Buick 5 percent of the time and his father 95 percent of the time. This policy was in effect upon the day of the accident, October 18, 1963.
Rae Schoenfeld, Marvin's wife and Larry's mother, was the title owner of a 1954 Oldsmobile, the car driven by Larry at the time of the accident. The Oldsmobile was purchased on June 20, 1963. While Rae Schoenfeld did not have a driver's license, the Oldsmobile had been purchased for her by her husband in the hopes that Larry, their son, would teach her to drive. The Oldsmobile was not an automobile described in any insurance policy.
On the day of the accident, Marvin Schoenfeld's insured Buick was out of repair because of starter difficulty. Mr. Schoenfeld testified that his wife's permission was needed before he could drive her Oldsmobile and that on the day of the accident, he received permission from his wife to take the Oldsmobile to work. Shortly thereafter, Larry informed his father that he was committed to drive two fellow members of a car pool to school, whereupon Larry was given permission by both Mr. and Mrs. Schoenfeld to use the Oldsmobile.
Larry Schoenfeld testified that he drove the Oldsmobile more than his father, but that he did not use it on a regular basis. The father testified that he used his Buick to go to work and that his son used it very little. It was his son's testimony that he also drove his father's Buick to and from school on occasion. However, Larry's contrary testimony before a court commissioner on March 13, 1968, was read into the record at trial. Larry had testified before the commissioner that the Oldsmobile was the only car he used to drive to and from school and the only car he used for social purposes, and that for school purposes he used no car but the Oldsmobile from June, 1963, to October 18, 1963, the date of the accident.
On the basis of this testimony, the trial judge concluded that the Buick automobile owned by Marvin Schoenfeld was undergoing repairs in a garage on the day of the accident, that the 1954 Oldsmobile became a "temporary substitute automobile" as defined in the insurance policy, and that the driver, Larry Schoenfeld, was therefore covered by the policy at the time of the accident.
The trial judge made the finding of fact that the Buick automobile was normally used by Marvin Schoenfeld to go to work.
The briefs of the parties make it apparent that the only question on this appeal is whether, in fact, the 1954 Oldsmobile driven by Larry was a "temporary substitute automobile." "Temporary substitute automobile," as defined in the policy of insurance:
". . . means an automobile or trailer while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction."
It is undisputed that the Buick had been withdrawn from normal use because it was in the garage for repair. The only question thus presented is whether the Oldsmobile was a substitute for the Buick. We are satisfied that it was not.
Respondents Gerald Strozewski and Maryland Casualty Company contend in their brief that the findings of the trial court must be sustained if they are supported by any credible evidence. That, of course, is not the proper test to be applied when reviewing the findings of the trial judge. Although the test urged is applicable in the case of a jury verdict, the relevant test herein is whether the findings were contrary to the great weight and clear preponderance of the evidence. The respondents apparently conclude that the trial judge found that the use of the Buick in going to and from Larry's school was the normal use of that automobile. Had the judge so concluded, we would be obliged to decide on the basis of the evidence set forth above that the finding is against the great weight and clear preponderance of the evidence. Rather, the judge found that the normal use of the Buick was to convey Marvin Schoenfeld to work. In his findings the trial judge stated, "That instead of using the 1954 Oldsmobile to go to work, for which he normally used the Buick . . . ."
Taking this finding, which is the only one supportable by the facts, it is apparent that the Oldsmobile was not actually used as a substitute for the Buick. Had the Oldsmobile been used by the father to go to work in place of the disabled Buick, the Oldsmobile would clearly have been a substitute for the Buick, and there would have been coverage for the use under the policy.
The definition of "temporary substitute automobile" provides that the coverage for the substitute applies when the usual automobile is "withdrawn from normal use." The clear implication of this phrase, and it has been uniformly so construed, is that the substitute automobile must be actually used for the same purpose that the regular automobile would be used. Annot. (1954), 34 A.L.R. 2d 933, 950, points out:
"One of the basic elements of a `substitution' provision is that the automobile claimed to be covered be actually used as a `substitute' for the described automobile.
"Thus, for example, it must be shown that, absent one of the specified circumstances, the described vehicle would have been used for the trip on which the accident occurred."
In Lewis v. Bradley (1959), 7 Wis.2d 586, 97 N.W.2d 408, a policy provision in regard to temporary substitute automobiles was discussed by the court. The policy definition, with the exception of minor variances not material to this case, is identical to the one in the Schoenfeld policy. Mr. Justice HALLOWS, speaking for the court, said at pages 591, 592:
"A substitute automobile within the meaning of the policy is one actually but only temporarily used in place of the specified automobile, i.e., for the same use the insured car would have been used except for its withdrawal from all normal use and while such withdrawal is because of its breakdown, repair, servicing, loss, or destruction."
Mr. Justice HALLOWS pointed out that the coverage does not apply unless the other automobile was "actually used as a substitute."
State Automobile Ins. Asso. v. Kooiman (D.C. S. D. 1956), 143 F. Supp. 614, cited with approval in Lewis v. Bradley, supra, held that a trailer was not within coverage of the substitution clause where the evidence was entirely lacking that the insured tractor would have been used for the hauling in the course of which the accident occurred.
7 Appleman, Insurance Law and Practice, p. 95, sec. 4293.5, in discussing the policy provisions in question and relying on Lewis v. Bradley, supra, states:
"It is contemplated that the same use will be made the substituted vehicle as would have been made of the one originally insured."
12 Couch, Insurance 2d, p. 271, sec. 45:232, points out:
"One of the basic elements of a `substitution' provision is that the automobile claimed to be covered is actually used as a `substitute' for the described automobile . . . .
"Thus it must be shown that, absent one of the specified circumstances, the described vehicle would have been used for the trip on which the accident occurred. A substitute automobile within the meaning of the substitute automobile policy clause is one actually but only temporarily, used in place of the specified automobile. That is, for the same use the insured car would have been used . . . ."
A review of the testimony makes it perfectly clear that, had the Buick not broken down, the Buick would have been used, not by Larry to go to school, but by his father to go to work. Larry would, as the testimony shows, have used the Oldsmobile to go to school. This is the very car that he did use. The Oldsmobile was not in substitution of the Buick. It was used as it was normally used — by Larry to go to school. Had the father used the Oldsmobile, there clearly would have been a substitution. the Buick, and the coverage would have applied. In the instant case, however, the breakdown of the Buick was merely coincidental and had nothing to do with the use the Oldsmobile. We therefore conclude that the Oldsmobile was not, in fact, substituted for the Buick as is required by Lewis v. Bradley, supra, and the coverage urged is not applicable.
By the Court. — Judgment reversed.