The respondent, General Accident Fire & Lifе Assurance Corporation, Ltd., on July 9, 1932, issued the policy in question to its corespondent, Harry Larson, owner of the automobile involved in the collision in question. The policy contained the following provision:
“B. Additional Assureds. The insurance provided by this policy is so extended as to bе available, in the same manner and under the same provisions as it is available to the named assured, to any person or persons while riding in or legally operating any of the automobiles described in the declarations or to any person, firm or corporаtion legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or if the named assured is an individual, with the permission of an adult member of the named assured’s household other than a chauffeur or а domestic servant, except that the extension provided for in this condition shall not be available to” a public garage or a purchaser, etc.
It appears that on July 5, 1933, the respondent, Harry Larson, permitted one P. L. Leach to use his car in going from Chippewa Falls to Albert Lea, Minnesota, and back to Chippewa Falls with the wife and minor child of said Leach, a trip which Leach desired to make for his own accommodation. Leach accompanied by his wife and son left Chippewa Falls on July 5, 1933, and drove to Minneapolis. The wife and child remained in Minneapolis, and Mr. Leach drove on to Albert Lea, Minnesota. He returned to Minneapolis the following day and there purchased a new car of his own. On July 7, 1933, Leach asked his brother-in-law, Carl Mor-tenson, to drive the Larson сar from Minneapolis to Chippewa Falls. ' They all started for Chippewa Falls, Leach driving his' new Ford, and Mortenson driving the Larson car, Leach’s wife and son riding with Mortenson. On this
The appellant contends that the trial court erred in its conclusion of law that the insurance coverage afforded by the “omnibus clause” of the policy was not available to thе appellant.
Provision B of the policy, above quoted, is in accord with the requirements of sec.. 204.30, Stats. 1931. The meaning of the policy as to extent of coverage must be determined by its own provisions and by sec. 204.30 (3) of the statutes. There is no conflict between the policy provisions and the provisions of the statute. The statute provides, sec. 204.30 (3), Stats. 1931:
“. . . The coverage hereby afforded shall not apply unless the riding, use or operation above referred to- be with the permission of the assured named in this policy, or if such assurеd is an individual, with the permission of an adult member of such assured’s household other than a chauffeur or domestic servant. . . .”
Appellant’s first contention is based upon the statutory provision:
“Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile,”,
and upon the similar provision in the policy. In this connection, appellant argues that on being given permission to use the car to go to Albert Lea and return, Leach became a person “legally resрonsible” for the operation of the Larson car; that he was legally liable for the negligence of his agent, Mortenson; and that because of this liability, Leach would have been entitled to claim the indemnity afforded by the-policy, and therefore under the statutоry provision plaintiff
In Cullen v. Travelers Ins. Co.
“Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile.”
At page 470 the court said:
“ ‘Such indemnity shall also extend to any person, firm or corporation legally responsible for the operation of such automobile.’ However, neither of those provisions effected any enlargement 'or change in the coverage afforded by the policy as to any рerson entitled to the indemnity afforded thereby.”
In Bro v. Standard Accident Ins. Co.
This court said in Drewek v. Milwaukee Automobile Ins. Co.
Prior to the enactment of ch. 372, Laws of 1925 (omnibus coverage provision), a policy of indemnity insurance on an automobile was considered a personal indemnity contract limiting coverage to those who contracted for it. The insurer was not liаble when the car was driven by a person other than the assured unless the driver was. within the rule of agency to the assured. Glatz v. General Acc., F. & L. Assur. Corp.
“That no coverage afforded by this paragraph [204.30 (3)] shall apply to a public automobile garage or an automobile repair shop, sales agency, service station, and/or the agents or employees thereof. In the event an automobile covered by this policy is sold, transferred or assigned, thе purchaser, transferee or assignee shall not be covered as an additional assured without written consent of the company, evidenced by indorsement hereon.”
There is also the limitation as to who may give consent. It must be given by the named assured or by an adult member of the assured’s household. Consent given by the chauffeur, the servant, minor members of the household, and members of the family not in the household of the assured, is not sufficient so as to extend coverage.
“If the facts adduced in an action, involving an omnibus clause, reasоnably tend to show that the automobile covered by the policy at the time of the accident was being used with the implied permission of the assured, that is sufficient to bring it within the coverage of such a clause. Christiansen v. Ætna Casualty & Surety Co.204 Wis. 323 ,236 N. W. 109 ; Bushman v. Tomek,222 Wis. 562 ,269 N. W. 289 .” Brochu v. Taylor,223 Wis. 90 , 96,269 N. W. 711 .
There is no evidence that Leach had ever borrowеd the Larson car before. There are no facts or circumstances to warrant an inference that Larson had any knowledge that Leach would permit anyone else to drive the Larson car on the trip to Albert Lea, Minnesota, and return to Chippewа Falls. In Bushman v. Tomek, supra, and Brochu v. Taylor, supra, this court carefully searched the evidence to determine whether it was sufficient to sustain the findings as to implied permission of the drivers of the respective cars at the time of the collisions there involved. The court held the evidence as to implied pеrmission was sufficient in the former case,
“. . . Neither of thоse provisions effected any enlargement or change in the coverage afforded by the policy as to any person entitled to the indemnity afforded thereby.”
A driver, to whom the car has been intrusted by one who had permission to use directly from the named assurеd, is not an additional assured under the omnibus coverage clause. Columbia Casualty Co. v. Lyle (5th Cir.), 81 Fed. (2d) 281; American Automobile Ins. Co. v. Jones,
“It is admitted that no claim for judgment was made against Larson and that he was joined as a party defendant solely because he was the named assured who- had taken out the policy. His permission was at issue and plaintiff wanted to have the right to cross-examine him.3’
It appears that during the trial, plaintiff stated he wished to call Larson as an adverse witness under the statute (sec. 325.14). Counsel for the defendant insurance carrier objected. The court sustained the objection, but stated that plaintiff might call Larson as his own witness. Appellant cites Ryan v. Olson,
“The defendant Olson being charged with the commission of a fraudulent act, and it being alleged that he participated therein, the court could award damages against him. At any rate, it being alleged in the complaint that he is interested in the transaction, under the provisions of sec. 2603 he was made a proper party defendant, and particularly is this so in view of the fact that this action is one in equity. . . . Furthermore, by virtue of the discovery statutes, a valuable right would accrue to the plaintiff in enabling him to examine the defendant adversely both before and after pleading, and particularly is this so under the provisions of sec. 4068, pursuant to which he may as a party be called adversely on the trial.
“We therefore conclude that while the defendant Olson is not a necessary party, nevertheless, he is a proper party, and that the court properly overruled the demurrer of such defendant on the first ground stated.”
In the instant case, Larson is joined as a party defendant without any attempt to state a cause of action against him. He was not a participant in the cause of action alleged. No judgment could have been rendered against him under any circumstances. He is neither a necessary nor a proper party to the action. We know of no authority to sustain appellant’s contention in the instant case. Certainly, the facts in Ryan v. Olson, supra, do not.
By the Court. — Judgment affirmed.