The inquiry here is whether exclusion clause (c) (3) appearing in the liability insurance policy issued by Farmers Mutual Automobile Insurance Company in the name of Edgar Depies land which policy was in force at the time of the dеath of Frankie B. Schneider, effectively excluded Walter Depies from coverage in the situation indicated by the facts herein.
The appellant contends that exclusion clause (c) (3) of the policy violates provisions of sec. 204.30 (3), Stats., specifically as to sub. (3) of said exclusion provision which in part reads as fоllows:
“No such policy [of insurance against loss or damage resulting from injury to a person, and for which the insured is liable] shall be issued in this state to the owner of a motor vehicle, unless it contains a provision reading substantially as follows: The indemnity provided by this policy is extended to apply, in the same manner and under the same provisions as it is applicable to the named assured, to any person or persons while riding in or operating any automobile described in this policy when such automobile is being used *47 for purposes and in the manner described in said policy. Such indemnity shall also extend to any person, firm, or corporation legally responsible for thе operation of such automobile. The insurance hereby afforded shall not apply unless the riding, use, or оperation above referred to be with the permission of the assured named in this policy, . . .”
It appeаrs that the deceased, Frankie B. Schneider, and the driver, Walter Depies, were both employees of Edgаr Depies, the named assured. At the time when the unfortunate fatal injuries were sustained by the decedent, both werе engaged in the course of their common employment and for the common employer in an accident that arose out of the maintenance or use of a truck in the business of such employer. The opеration of the truck was with the permission of the assured and the particular truck was the vehicle coverеd by the policy.
Under the statute and the policy, coverage was extended to one situated as was Walter Depies and such additional assured (Walter Depies) was afforded the same protection that was granted to the assured Edgar Depies under the terms of the policy.
Appellant contends that under the deсisions of this court the purchaser of this particular policy, who is named as the assured, would not be excluded from coverage had he been driving the truck at the time of the injury to Schneider. Clearly, he would have been excluded in such circumstances under provisions of (b) (2) of the policy.
Exclusion clauses substantially the same as (b) (2) of this policy have heretofore been construed by this court in situations comparable to the facts hеrein.
Buck v. Home Mut. Casualty Co.
(1951),
Plowever, the insurer in the instant case relies on clausе (c) (3) for the exclusion of the additional assured.
An insurer may not restrict coverage to the driver with permission tо less than that afforded the named assured, except as permitted by sec. 204.30 (3), Stats.,
Schenke v. State Farm Mut. Automobile Ins. Co.
(1944),
In
Ainsworth v. Berg
(1948),
Considering the record herein we are obliged to concur in the view expressed by the learned trial judge in his decision that:
“Nothing is contained in this statutory provision that the additional insured shall have greater protection than the named assured, and yet if the plaintiff’s contentions in the instant case are sound the result would be that the additional insured receives greater liability protеction than the named assured.”
It is the right of the insurer to limit its liability by the terms of the contract, unless the restriction be prоhibited by statutes or consideration of public policy.
Olander v. Klapprote
(1953),
For the reason that the policy here does not afford coverage to Edgar Depies, the аssured, under the circumstances of this case, we are obliged to find no coverage attaches to Walter Depies as the additional assured under the policy or the existing law as to the claim of the appellant herein.
By the Court. — Judgment affirmed.