Kalamazoo Auto Sales Co. v. Travelers Insurance

Defendant is not relieved from liability because the accident happened on one of the inland lakes of the State. Defendant does not write marine insurance, but it does insure against liability for accidents, and the fact that the accident occurred on an inland lake instead of on a public highway does not of itself preclude recovery if the accident is otherwise within the coverage of the policy.

The policy does not itself limit liability to those accidents which occur at the location of the garage fixed at a definite place in items 3 and 6, and we should not so limit it by construction. By paragraph VII of the policy accidents at the garage are provided for in (a) and "elsewhere" in (b). The policy is to be considered in its entirety and if it is ambiguous must be construed most strongly against defendant, having been prepared by it. We should not indulge in a strict construction to defeat liability and should take into consideration the policy as a whole and indulge in such a construction as will give it force for the purpose it was intended to serve.

Upon the main question involved both counsel submit the case as one of first impression. In the limit of time at our disposal we have found but one case which approximates it. In Frint Motor Car Co. v. Assurance Corp.,173 Wis. 109 (180 N.W. 121), the plaintiff was an automobile sales agency. For the purpose of demonstrating and advertising its cars it entered them in automobile races; one Healey was a mechanic in its employ and during the races was a "pitman" near the edge of the race track. He had been ordered not to go upon the track. During a race one of plaintiff's cars was in trouble and he went upon the track and was killed. Liability of plaintiff to his dependents was sustained in Frint Motor CarCo. v. Industrial Commission, 168 Wis. 436 (170 N.W. 285), and thereupon this action was brought by plaintiff against defendant, its insurer. In the policy under the heading "Description of Work Covered by this Policy and Classification of Risk" appeared the following:

"(a) All operations [not included in subdivision (b) and (c)] necessary and incidental to the performance of the work herein described as follows:

"Operating automobile salesroom, garage and repair shop. The buying, selling, demonstrating and dealing in automobiles throughout the State of Wisconsin.

"(b) Work done at the shops, yards or other work places or premises of the assured as above located, or work done in connection with or preparation for the work described in (a) foregoing (mining or blasting excluded).

"(c) Elective officers — office duties only, excluded.

"Executive officers superintending or doing manual labor, if any."

Defendant denied its liability for an accident so circumstanced and in addition to its general denial insisted that racing was uninsurable and that plaintiff well knew this fact. In sustaining liability it was said by the court:

"The claim of knowledge of respondent that racing was uninsurable is further based upon the fact that it had been refused a personal accident policy upon a race driver. This seems to us as an entirely different matter from the insurance, under the compensation act, of a whole automobile business, including all the employees engaged in the various activities not infrequently carried on by those in the business, including such duties as were performed by Healey, at occasional races on fair grounds and tracks in the territory where they did business, for the purpose of showing off and advertising their cars."

In paragraph VI of the policy before us occurs the following language:

"This agreement shall apply to such injuries so sustained if caused by work incidental and necessary to the conduct of the automobile sales agency, service station or public garage, located and described in said declarations." * * *

While to the uninitiated it may appear a far cry to say that such entertainment of prospective customers as this record discloses was incidental and necessary to the conduct of an automobile sales agency, we can not substitute our want of knowledge on the subject for the positive testimony appearing in this record. By such testimony this question was made a question of fact for the jury. It was properly submitted to them.

The judgment will be affirmed.

McDONALD, MOORE, STEERE, and WIEST, JJ., concurred with FELLOWS, J.