Sec. 204.30 (3), Stats., reads:
"No such policy shall be issued or delivered 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 for purposes and in the manner described in said policy. Such indemnity shall also extend to any person, firmor corporation legally responsible for the operation of suchautomobile. The insurance 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; . . . provided, however, that no insurance afforded by this paragraph 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 or transferred the purchaser or transferee shall not be an additional insured without consent of the company, indorsed hereon."
This section permits of but three limitations to omnibus coverage. These were set out in Schenke v. State Farm Mut.Automobile Ins. Co. 246 Wis. 301, 304, 16 N.W.2d 817: "(1) The operation must be with permission; (2) the omnibus coverage does not apply to a public garage or an automobile repair shop, sales agency, service station and/or the *Page 603 agents or employees thereof; and (3) it does not apply for the benefit of the purchaser where the automobile is sold."
Those are the only instances in which the coverage of the additional insured is not to be the same as that of the named' assured. Except for them the statute requires that the terms of automobile insurance policies shall apply with equal force to the driver of a car whether he is the named assured or a person who is driving the car with the owner's permission, that is, an additional insured.
On this appeal we are concerned with an insurance policy which contains this required omnibus clause. In another part of the policy there is an "exclusion" of the named assured from recovery under the policy for bodily injury or death. The question is, Does that exclusion operate to make the coverage of the additional insured any less than that of the named assured? If it does, then, as the majority points out, the fact that it appears in a different part of the policy and under a different name does not free it from the statutory requirements.
It is clear that had the named assured himself been driving he would not be able to recover against the insurance company. It is also clear that the driver of the car in this case — the additional insured — cannot recover. This policy, as appellant points out, is not for accident insurance but for liability insurance.
Here, however, the named insured was a passenger in the car. He was injured through the driver's negligence. He has a cause of action against the driver for his injuries due to that negligence. Had the named assured been driving he would have been indemnified for all damages recovered against him. Under the exclusions in the insurance .policy the driver is not indemnified by the insurance company for damages he may have to pay to the named assured. Yet the legislature has said that insurance policies shall be extended with equal coverage to anyone who is driving the car with *Page 604 the owner"s permission. If we are to follow the wording and purpose of the statute, we must hold that the clause in the policy is inoperative.
There is one important point on which I cannot agree with the decision in this case. In a number of cases this court has held that a limitation on the coverage of the additional insured is valid if it appears in a general exclusion clause of the policy; however, if it appears in the omnibus coverage clause it has been held void as an attempt to add to the statutory exceptions. In other words, this court has not only held that the equal coverage to additional insured required by statute can be circumvented, but also that this can be done by the mere mechanical device of placement in the policy. I do not believe that this is what the legislature intended.
In a few cases we did give a mistaken construction to the statute. But the language of the statute is clear. "There is no safer or better-settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it plainly expresses, and no room is left for construction."Swarts v. Siegel (8th Cir.), 117 Fed. 13, 18. See also Travelers' Ins. Co. v. Fricke, 94 Wis. 258, 266,68 N.W. 958.
I cannot agree with the majority that, because such construction has been given, it ipso facto must stand. Because the legislature has not amended the statute to correct that construction is not controlling. Mere legislative silence, standing alone, is not sufficient to indicate that the legislature has acquiesced in the court's construction. Girouard v.United States, 328 U.S. 61, 66 Sup. Ct. 826,90 L. Ed. 1084; concurring opinion of Mr. Justice RUTLEDGE inCleveland v. United States, 329 U.S. 14, 21, 67 Sup. Ct. 13,91 L. Ed. 12; Zazove v. United States (7th Cir.), 162 F.2d 443;Rosemary Properties, Inc., v. McColgan, 29 Cal. 2d 677,177 P.2d 757. Now that the mistake is clear, I believe that in the best interests of justice those cases. *Page 605 should be overruled. Wentz v. Price Candy Co. 352 Mo. 1,9, 175 S.W.2d 852, 855.
Drewek v. Milwaukee Automobile Ins. Co. 207 Wis. 445,240 N.W. 881, is not applicable in this case. It comes within a limitation provided for in the statute. The statute provides that the insurance shall only apply "when such automobile is being used for the purposes and in the manner described in said policy."
The legislature has said, then, in clear unequivocal language that the policy should give the additional insured equal protection with the named insured. This court has gone on record holding that the validity of a limitation on the coverage to the additional insured depends not on the statute but on the location of the clause in the insurance policy. The wording of the exclusion in Schenke v. State Farm Mut. AutomobileIns. Co. 246 Wis. 301, 16 N.W.2d 817, and in this case is practically identical. In the Schenke Case it was held void because it appeared in the omnibus coverage clause. In this case it is held valid because it appears in a general exclusion clause. I submit that such a technicality should not be allowed to defeat the avowed purpose of the statute.
BROADFOOT, J., took no part. *Page 606