Behringer v. State Farm Mutual Automobile Insurance ( 1957 )

Fairchild, J.

(concurring). Quin v. Hoffmann (1954), 265 Wis. 636, 62 N. W. (2d) 423, held that permission given to an unlicensed driver is not “permission” as used in the statutory omnibus coverage clause. In my opinion that decision should be overruled. It was apparently considered that sec. 204.30 (3), Stats., was not enacted for the protection of persons injured but only for the benefit of the additional assured. That was too narrow a view. Ch. 349, Laws of 1955, effective July 8, 1955, changed the rule of Quin v. Hoffmann but the instant case arose before that date. On the basis of the foregoing, I agree that the order as to Universal Underwriters should be affirmed. I agree with reversal as to Ringle for the reason stated by the majority.

Because the foregoing is a sufficient basis for the result, I express no opinion as to the theory upon which the majority opinion is based. With reference, however, to the discussion of Pulvermacher v. Sharp, ante, p. 371, 82 N. W. (2d) 163, set forth in the majority opinion, the following observation is pertinent. Counsel in the Pulvermacher Case did not attack the validity of the policy provision excluding from coverage afforded to an additional, assured his liability to a named assured. Such validity was evidently considered established in Frye v. Theige (1948), 253 Wis. 596, 34 N. W. (2d) 793. Although the opinion in the Frye Case sought to distinguish Schenke v. State Farm Mut. Automobile Ins. Co. (1944), 246 Wis. 301, 16 N. W. (2d) 817, the principle of the Schenke Case was in my opinion correct and controlling. The court ought to return to it. The exclusion of liability to a named assured causes an additional assured to enjoy less protection than the policy gives the named assured and violates sec. 204.30 (3), Stats.