Two issues are raised on this appeal:
1. Was the impact between the Moore automobile and the Rauwald automobile a separate "occurrence" from the impact between the Moore and Janikowski autos within the terms of the policy of insurance?
2. As a matter of law, was Thomas Moore acting within the scope of his employment at the time of this incident?
1. One v. two "occurrences." The contract of insurance issued by Badger State Mutual Casualty Company provided the following limits of liability in its declarations:
"Premiums Limits of Liability Coverages $22.50 ($10,000.00 each person Bodily injury liability ($20,000.00 each occurrence Bodily injury liability $12.50 $10,000.00 each occurrence Property damage liability"
Although the word "occurrence" is not defined in the policy, the limits of the company's liability are elaborated upon:
Appellants' essential position is that Thomas Moore's negligent driving resulted in two accidents or "occurrences" rather than one. Appellants submit one occurrence or collision occurred when the Moore auto hit the Rauwald auto and another separate and distinct occurrence resulted when the Moore automobile collided with the Janikowski auto. This would result in raising Badger State Mutual's maximum exposure to $40,000.
The question of whether a collision of one automobile with two or more other automobiles constitutes one or several accidents or occurrences has not before been decided by this court.
"... Proximate cause is an integral part of any interpretation of the words `accident' or `occurrence' as used in a contract for liability insurance which indemnifies the insured for his tortious acts....
"... There was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage. We are of the opinion that the contract contemplated that the terms, `accident' and `occurrence,'
A like result also occurred in Saint Paul-Mercury Indemnity Co. v. Rutland,
"The only limit expressed in the policy for automobile property damage liability is the disputed phrase `$5,000.00 each accident.' It can hardly be denied that when ordinary people speak of an `accident' in the usual sense, they are referring to a single, sudden, unintentional occurrence. They normally use the word `accident' to describe the event, no matter how many persons or things are involved.
"... we think it clear that the word `accident' as used in the disputed phrase was intended to be construed from the point of view of the cause rather than the effect."
A small number of jurisdictions subscribe to the "effect theory" of liability. The origin of this view of the words occurrence or accident is found in an early English
"... If several persons were injured, I think, upon the true construction of this policy, there were several accidents."
This holding was first adopted in this country in a decision of the Federal Court of Appeals for the Fifth Circuit, Anchor Casualty Co. v. McCaleb,
At least one author regards this theory as falsely premised. It is suggested in Long's treatise on liability insurance that courts must look at the policy's provision relating to the upper limits of liability ("... the total
The issue thus before this court is whether an "accident" or "occurrence" in a liability insurance policy providing stated limits of liability "per accident" or "per occurrence," should be viewed from the perspective of cause or effect. If viewed from the point of view of a cause, it would appear that a single, uninterrupted cause which results in a number of injuries or separate instances of property damage is yet one "accident" or "occurrence." If, however, that cause is interrupted or replaced by another cause the chain of causation is broken and more than one accident or occurrence has taken place. Liberty Mut. Ins. Co. v. Rawls,
The facts here are distinctly different from those in Rawls. Here Thomas Moore's vehicle struck both vehicles almost instantaneously. Witness Robert Perlick testified that he was in a car approximately six car lengths behind the Rauwald and Janikowski automobiles. He testified to the effect that the Moore auto crossed over the median strip, over the left lane and struck the first auto in the right lane; that the Rauwald auto was thrown into the ditch and the Moore car was deflected into the high-speed lane where it collided with the second (Janikowski) auto. On cross-examination Perlick testified that the collisions occurred almost instantaneously. According to Perlick, the whole incident occurred in less than a second. There was also testimony by defendant Thomas Moore that he remembered nothing of the accident:
"I remember making a turn off onto Highway I-94, I remember passing a car, I remember rolling up the window so the wind wouldn't blow in, and I proceeded down the highway and that's the last I remember."
There was virtually no time or space interval between the two impacts. Moore never regained his control over the automobile prior to striking the second car as did the driver in Rawls. Viewed from the standpoint of the "cause theory" the situation here clearly would result in but one accident or occurrence.
The term "accident" has been defined in a workmen's compensation case as "a fortuitous event, unexpected and unforeseen by the injured person,"
Appellants further contend that the policy language is ambiguous and should, therefore, be construed against the insurer. But such rule of construction is not applicable unless there is ambiguity.
Furthermore, it has often been noted that no essential difference exists between the words "accident" and "occurrence."
"... However, in our opinion and for the purposes of this case, the terms, `accident' and `occurrence,' are synonymous."
2. Scope of employment. Appellants' second issue is whether Thomas Moore was acting within the scope of his employment at the time when he was driving and caused injuries. Appellants argue that because Moore's employer was required, by its contract with the painters'
Appellants' contention that, due to the contractual requirement of the employer to pay its employees 25 cents per hour more for transportation costs, such employer is liable for the employee's negligent driving, is falsely premised. Assuming that paying 25 cents extra per hour to defray an employee's transportation costs amounts to providing transportation for employees, as was the determinative question in the cases appellants cite,
"`The master may authorize the use of a particular instrumentality without assuming control over its use as a master. The fact that he does not own it or has not rented it upon such terms that he can direct the manner in which it may be used indicates that the servant is to have a free hand in its use. If so, its control by the servant, although upon his master's business, is not within the scope of the employment.'"
Also illuminating with regard to appellants' argument that Moore was provided with transportation and their argument that Moore was furthering his employer's business by carrying the tools back to home base is this court's favorable reference to one of the Restatement's illustrations to this comment:
"`The master agrees with A, his servant, to pay for A's transportation upon public vehicles such as railway trains and streetcars. As an alternative, A is permitted to use his own automobile for transportation, charging to the master the regular train fare. A is paid by the week, with indefinite hours of labor. In going to a place at which he is to perform work for the master, A drives his own car, carrying thereon necessary tools and materials belonging to the master. In the absence of evidence that A owes P any duty of obedience in the details of operating the automobile, such driving is not within the scope of employment.'"
We are satisfied, therefore, that merely by paying transportation costs the employer here did not have sufficient control over the Moore vehicle on which to predicate its liability for Moore's negligence. Precisely refuting appellants' argument that compensation equals
"... Such reimbursement [for the cost of traveling from a former home to Omaha], however, did not grant nor did Ford, Bacon & Davis exercise any control over the method or route of Curtis' travel." (Emphasis supplied.)
Appellants argue that Moore's returning his employer's tools and drywall material to the company yard indicates that he was yet within the employment scope.
"Q. Now, when you were driving your car after loading it, where were you going? A. I was going to Milwaukee.
"Q. Specifically where were you going to go? A. I was going to Lillian's Tap.
"Q. And you were returning your employer's equipment to your employer on August 4, 1965, when this accident happened; is that correct? A. No, sir.
"Q. Were you going to keep it yourself? A. Yes, sir.
"Q. And you were going to take it home? A. No, sir.
"Q. You were eventually going to return it to your employer, weren't you? A. Yes, sir.
"Q. And you finished [work] sometime after 4:30 and then you went over to Zigg to have a couple of beers to relax? A. Yes, sir.
"Q. After when you left Zigg, you were already aware of the fact you couldn't possibly get back to Maier's by 5:00 o'clock [the yard's closing time]; isn't that correct? A. I knew I would never—I can't, if you don't leave at 4:30 on the head you will never make it.
"Q. You had no intention then, Mr. Moore, of trying to get to Charles Maier and Sons Company with anything
To argue, as do appellants, that Moore, merely by loading his car with his employer's tools and drywall, subjected Charles Maier & Son Company to liability for his negligence is to argue that an employer will always be liable where he permits employees to carry company owned tools and goods—regardless of the lack of control over the movements of an employee by the employer.
Appellants' final contention is that Moore was returning to Lillian's Tap in Milwaukee to obtain his paycheck from the company foreman, which, pursuant to the employment contract, had to be presented to employees every Wednesday. The record indicates, however, that this rendezvous at Lillian's was a regular Wednesday evening feature for Moore and his friend Alvin Knecht, the company foreman, regardless of whether a paycheck exchanged hands.
Again, assuming Moore was returning to Milwaukee solely to pick up his paycheck from his employer, Wisconsin case law mandates the presence of the element of control in order to predicate an employee's negligence to an employer.
By the Court.—Judgments affirmed.