Opinion
September 12, 1955 —
October 11, 1955.
APPEAL from an order of the circuit court for Sawyer county: CLARENCE E. RINEHARD, Circuit Judge. Reversed.
The cause was submitted for the appellant on the briefs of Arthur DeBardeleben of Park Falls, and for the respondent on the brief of Douglas, Omernik Bitney of Spooner.
The order in question enjoined plaintiff from referring to defendant, General Casualty Company of Wisconsin, during the trial of the action, in any manner whatsoever; and directed that such defendant's name be omitted from the verdict and from the printed calendar. Plaintiff appealed from the whole of such order but submits argument only on the portion enjoining reference to defendant General Casualty Company during the trial.
Plaintiff-appellant commenced an action for damages against both defendant Slanovich and defendant General Casualty Company of Wisconsin. The complaint alleged that plaintiff had sustained injuries by reason of Slanovich's negligent operation of a certain Dodge truck which collided with one driven by plaintiff; and that at the time of the collision defendant General Casualty Company had in force a policy of insurance, in a principal sum greater than plaintiff's claim, whereby General Casualty Company agreed to pay damages for which Slanovich might be held liable because of his ownership and operation of the said Dodge truck; and agreed, further, to defend Slanovich at its own expense in any action brought against him based on his negligence in maintaining or operating such truck.
The answer of the defendant General Casualty Company admitted the existence and effect of the insurance policy and admitted that any obligation of Slanovich in the premises was the obligation of General Casualty Company up to the limits of its policy, and consented that a judgment against Slanovich should run also against the General Casualty Company.
General Casualty Company then moved for a separate trial and to have its name deleted from the court calendar and the verdict. Its motion was supported by an affidavit of counsel repeating in substance the allegations and admissions of its answer and stating that the only possible issue to be litigated between plaintiff and defendant General Casualty Company would concern nothing but the limits of the insurance policy. The court did not expressly grant the motion for a separate trial but entered the following order, from which this appeal is taken.
"It is ordered, That the General Casualty Company of Wisconsin's name be omitted from the verdict, that its name do not appear on the printed calendar, and that the plaintiff be enjoined from further referring to the defendant, General Casualty Company of Wisconsin, during the trial of this action, in any manner whatsoever, and that a copy of this order be served upon the clerk of court in Sawyer county within ten days from the date hereof."
The order in question, which grants an injunction, is appealable. Sec. 274.33(3), Stats. Since no brief or argument is submitted concerning any part of the order except the injunction, we have not considered nor decided any other question which the order may involve. The pleadings in respect to the General Casualty Company's insurance policy establish it as a proper party defendant under sec. 260.11(1), Stats., which declares:
". . . 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 on account of any claim against the insured."
The proposition that, while one may have his action against a designated defendant, he may not refer to that defendant or divulge its name during the litigation presents a paradox so startling that only the most direct and positive authority will convince us of its truth. The authority respondents rely on is that portion of sec. 260.11(2), Stats., reading as follows:
". . . .Nothing herein contained shall be construed as prohibiting the trial court from directing and conducting first a trial as to whether or not the insured is liable to the plaintiff or other party and directing a separate trial on the issues involving the question whether under its policy the insurer is liable for the payment in whole or in part of any judgment against the insured or the amount of such liability."
Obviously this statute permits the trial court to direct that the tort liability and the insurance coverage shall be determined in separate trials but if the tort questions are so determined the insurer is nonetheless a party interested in the result of that trial and jurors or witnesses closely connected with the insurer, — as stockholders or employees, for instance, — may be biased on account of the connection. For many years, and even before ch. 375, Laws of 1931, enacted the quoted portion of sec. 260.11(1), Stats., we have held that this bias might be explored by questions on that subject asked in good faith of a witness or prospective juror. Faber v. C. Reiss Coal Co. (1905), 124 Wis. 554, 102 N.W. 1049; Martell v. Kutcher (1928), 195 Wis. 19, 216 N.W. 522; Johannsen v. Peter P. Woboril, Inc. (1952), 260 Wis. 341, 51 N.W.2d 53. The same holds true for comments of counsel on the subject of interest made during argument. Roeske v. Schmitt (1954), 266 Wis. 557, 64 N.W.2d 394. See also Lozon v. Leamon Bakery Co. (1925), 186 Wis. 84, 202 N.W. 296.
We are unable to read anything out of sec. 260.11(2), Stats., which authorizes a court to prohibit such good-faith inquiry or comment. We conclude that the learned trial court erred in granting the part of the order enjoining reference to the defendant corporation.
By the Court. — Order reversed as to the injunction, and cause remanded for further proceedings not inconsistent with this opinion.