194 Wis. 293 | Wis. | 1927
The following opinion was filed October 11, 1927:
The single question presented is whether the provision of the policy quoted above gave the defendant Nicol indemnity so that recovery could be had of the insurance company. That in turn depends on the question whether defendant Nicol was legally operating the automobile with the permission of an adult member of Mr. Moran’s household at the time the injury was inflicted.
The jury found that defendant Nicol was operating the automobile at the time of the accident with the permission of Emmett Moran, who was an adult member of the household of the insured. The case turns upon the question whether that finding is supported by the evidence. The only evidence which even tends to prove an express permission is the testimony of defendant Nicol that, as he was about to leave by the front stairway of the apartment in which a New Year’s party was being held, he called to Emmett, whom he testifies he could not see, but whom he “imagined” to be in a hallway at the rear of the apartment near the kitchen door. He did not hear Emmett’s reply, but heard him say something and then laugh, and he took it to mean
It is further contended that there is proof of an implied permission. First. On the ground that Emmett and Nicol had frequently driven each other’s cars. But the proof is without conflict that neither had ever driven the car belonging to the family of the other prior to the night here in question, except when the one whose car was being driven was in the car or when express permission had been given to use the car. Second. It is contended that permission may be implied from the fact that Emmett had used the car to bring some of those who attended the party to the place where the party was being held, Emmett having testified that he took the car in order “to have it there.” This proof falls far short of establishing an implied permission, when it is considered that defendant Nicol had never driven the Moran car without express permission and that he thought it necessary on the night in question to ask permission before taking the car.
The court therefore concludes that the finding of the jury that the car was being operated with the permission of Emmett Moran at the time of the accident is against the clear preponderance and great weight of the evidence. It follows that the appellant insurance company was not liable to indemnify defendant Nicol and that judgment was erroneously entered against it.
Sec. 85.25, Stats., does not give the plaintiff a right of action against the insurance company. This is a remedial statute which does not create a liability or confer any right of action where none exists under the terms of the policy
By the Court. — The judgment against the appellant insurance company is reversed, and the cause remanded with directions to dismiss the action against the appellant company.
A motion for a rehearing was denied, with $25 costs, on December 6, 1927.